Bangalore District Court
M/S Creative Infotech vs M/S. Mahathru Technologies on 19 December, 2024
KABC020239242022
IN THE COURT OF ADDL.CHIEF JUDICIAL
MAGISTRATE AT BANGALORE
PRESENT: Smt. Vidyalaxmi Bhat
BA., LL.B.(Hons), LL.M.
XI Addl. Small Causes Judge & ACJM,
Court of Small Causes, SCCH-12, Bengaluru.
Dated this the 19th day of December, 2024
C.C.No.50852/2019
Complainant M/s Creative Infotech
S-108, 1st Floor, South Block,
Manipal Centre Dickenson Road,
Bengaluru-560042.
Rep by its Proprietor,
Dr. Mohit R.Hegde
S/o Raghuram Hegde
Aged about 46 years
(By Sri.Nanaiah.M.T, for Sri.M.R.C.
Manohar, Advocate)
V/s.
Accused 1. M/s. Mahathru Technologies
By its Proprietor
Mrs. Holladagadde Giddegowda
Pranitha
W/o Sharath Gowda,
Aged about 29 years
No.18/2, 1st Floor, 12th Cross,
8th Main, Wilson Garden,
Bengaluru-560027.
SCCH-12 2 C.C.No.50852/2019
Also to be served at
M/s. Mahathru Technologies
By its Proprietor
Mrs. Holladagadde Giddegowda
Pranitha
B-606, 6th Floor, Krishna Block, KHB
Games Village, Koramangala,
Bengaluru-560047.
(By Sri.V.N.Hiremath, Advocate)
1. Date of commencement of offence : 28.01.2019
2. Name of the complainant : M/s.Creative Infotech
3. Date of recording of the evidence : 28.01.2019
4. Date of closing of evidence : 03.12.2024
5. Offence complained of : Section 138 of N.I.Act
6. Opinion of the Judge : Accused found guilty
7. Complainant represented by : Sri. M.R.C, advocate
8. Accused defence by : Sri.V.N.H, advocate
JUDGMENT
This complaint is filed by the complainant against accused
under Section 200 of Cr.P.C for the offence punishable U/s 138
of Negotiable Instruments Act.
2. This case is originally filed before 34 th ACMM, Mayo Hall
Unit, Bengaluru and by Order dt. 19.07.2022 in
Crl.Mis.No.2808/2022 this case is transferred to this court with
direction of Hon’ble Prl.City Civil and Session Judge, Bengaluru
to be disposed off with C.C.No.60105/2018 which is pending
before this court. Further, there is direction issued by Hon’ble
High Court of Karnataka in Crlp.No.11532/2024 dt. 11.04.2024
to dispose the above matter within one month from the date of
SCCH-12 3 C.C.No.50852/2019
completion of cross examination of P.W.1. The cross of P.W.1 was
completed on 19.11.2024 and therefore this case is to be
disposed today within one month i.e., on 19.12.2024 along with
C.C.No.60105/2018.
3. It is the case of complainant that, complainant is a
Proprietor concern and they are dealer of Apple computer and
accessories, the accused is one of its customer and getting
supply of computer and accessories as per the orders and
instruction of the accused. Complainant used to send the
materials on credit basis and raised the invoice for the supply of
products and maintained the running account. That the accused
has taken the desktop and laptop on credit basis from
27.06.2016 to16.10.2018 and accused agreed to pay the amount
within 5 days from the date of invoice in default he agreed to pay
24% interest p.a., from the date of invoice, however accused has
not paid amount as agreed by them from the beginning to have
wrongful gain. Complainant refused to take further orders until
payment of invoice amount with interest is paid. On repeated
demands for payments, accused has paid some amounts on
follow ups and has issued cheque bearing No.969463
dt.26.10.2018 for Rs.2,85,56,920/- and another cheque No.
969464 dt. 29.10.2018 for Rs.2,09,24,812/- drawn on YES bank
ltd, Avenue road, branch, Bengaluru in favour of complainant
towards discharge of legal payment. The complainant has filed
complaint against the accused in C.C.No.60105/2018 and same
is pending before this court. That accused has issued another
cheque bearing No.969465 dt.16.11.2018 for Rs.1,40,00,000/-
drawn in favour of complainant through YES bank ltd, Avenue
SCCH-12 4 C.C.No.50852/2019
road, branch, Bengaluru, towards interest for the delay payment
from 27.06.2016 to 16.10.2018. That on 16.11.2018 complainant
presented the above said cheques for encashment through their
bank i.e., Syndicate Bank, M.G.Road branch, Bengaluru, but the
said cheques were dishonored due to ‘Payment stopped by
drawer’ by the bankers endorsement, dt.17.11.2018. That
complainant got issued legal notice dt.12.12.2018 calling upon
the accused to make payment covered in the cheque along with
interest within 15 days from the date of receipt of legal notice
and notice sent through RPAD was served to accused on
13.12.2018 and legal notice sent to Koramangala place came to
be returned with endorsement ‘not known’. Inspite of service of
legal notice accused has not complied the demand made by the
complainant regarding payment. Therefore, it is alleged that
accused has committed the offence p/u/s 138 of N.I. Act and she
may be punished by imposing maximum sentence and award
compensation to the complainant.
4. The cognizance of the offence is taken by the Hon’ble 34 th
ACMM, Bengaluru and plea of the accused was recorded before
that court. She pleaded not guilty and stated that she has
defence to make. Therefore, evidence of complainant is recorded.
To prove his case, complainant entered into witness box and got
examined as P.W.1. Through him Ex.P.1 to 27 documents are
marked. PW-1 is fully cross examined and evidence of
complainant is closed.
5. Statement of accused U/s 313 of Cr.P.C is recorded. Accused
denied material evidence against her and stated she has defense
SCCH-12 5 C.C.No.50852/2019
evidence. To prove her defence, accused entered witness box and
got examined as D.W.1. No documents are marked through her
in chief examination. Witness for accused by name Sharath
Gowda is examined as D.W.2. He got marked Ex.D.1 to 5
documents. Sr.branch manager of YES Bank, Avenue road
branch, Bengaluru is examined as D.W.3 and FSL expert by
name Dr. Bhavana Desai, who has given opinion in respect of
disputed signature in the above case is examined as D.W.4. She
is fully cross examined and defence evidence is closed.
6. Heard learned counsel for both sides and perused records.
Both sides have filed written arguments. Counsel for
complainant relied upon the following judgments.
1) Rangappa V/s Sri Mohan (2010)11 SCC 441
2) Padum Kumar V/s State of Uttar Pradesh (2020) 3 SCC 35
3) Rajesh Jain V/s Ajay Singh (2023)10 SCC 148
4) Laxmi Dyechem V/s State of Gujarath and Others
(2012)13 SCC 375
7. The points that arise for my consideration are as follows:
1. Whether the complainant proves
beyond reasonable doubt that accused
has issued cheque bearing No.969465
dt.16.11.2018 for a sum of
Rs.1,40,00,000/- drawn on YES bank
ltd, Avenue road, branch, Bengaluru in
favour of complainant towards
discharge of legally enforceable debt or
liability and when complainant
presented the above said cheques for
encashment on 16.11.2018 through
their bank i.e., Syndicate Bank,
M.G.Road branch, Bengaluru, the said
cheque was dishonored due to ‘Payment
SCCH-12 6 C.C.No.50852/2019stopped by drawer’ by the bankers
endorsement, dt.17.11.2018 and even
after receipt of demand notice accused
not paid the legal dues and thereby
accused committed offense punishable
under Section 138 R/w Sec 142 of
Negotiable Instruments Act?
ii. What order ?
8. Following are the findings for the above said points.
6-
Point No.i : In the Affirmative
Point No.ii : As per final order for the following :
REASONS
9. Point No. i : It is necessary to note that, this case and
another C.C.No.60105/2018 are arising out of same business
transaction between the parties therefore they are directed to be
disposed together. The case in C.C.No.60105/2018 is in respect
of unpaid invoices by the accused and this case is relating
interest on delayed payment by the accused. Therefore, both the
parties have adopted the evidence and documents marked and
recorded in C.C.No.60105/2018 to avoid repetition in marking.
As such, the contentions taken in the said case is relevant and
necessary to be considered in this case also.
10. The case of the complainant that, accused being
Proprietary concern represented by its Proprietor is customer of
complainant proprietary concern and accused has received
computers and accessories on credit basis and for that
complainant has raised invoices. It is also stated in the
complaint that, the transaction was in between 07.09.2018 to
16.10.2018 in all 11 invoices were raised for the products
SCCH-12 7 C.C.No.50852/2019
received by the accused from the complainant. It is further stated
in the complaint that, in all accused is in due of
Rs.5,25,75,797/-. That on repeated demands accused paid some
amounts and for the remaining amount, she issued two cheques
for Rs.2,85,56,920/- and 2,09,24,812/- respectively in favour of
the complainant. The cheques are produced at EX.P.2 and 3 in
the connected case. In the present case at Ex.P.1 original cheque
is produced which shows that it is drawn in the name of
complainant for Rs.1,40,00,000/- on 16.11.2018 belonging to
Yes Bank, Avenue road branch, Bengaluru. It bears signature by
name Pranitha which is disputed by the accused. It is stated that
accused has not affixed her signature on that cheque but it is
forged by the complainant himself. As per Ex.P.2 bank
endorsement cheque was presented to the bank of the
complainant on 17.11.2018 and it is returned unpaid for the
reasons ‘payment stopped by drawer’ on 17.11.2018. Thereafter,
as per Ex.P.3 demand notice is issued to accused on 12.12.2018
and it is returned as ‘item delivered’ as Ex.P.6 track report.
Accused has not issued reply to this legal notice.
11. Complainant contended that he has complied all the
requirement under Sec.138 of N.I. Act and therefore presumption
under Section 139 of N.I.Act may be drawn in his favour. It is
necessary to notice that to draw presumption under Sec.139 of
N.I. Act, cheque should be presented within 6 months from the
date of which it is drawn or within the period of its validity
whichever is earlier, the demand should be made to recover the
amount in notice to the drawer of cheque within 30 days of the
receipt of information by him from the concerned bank regarding
SCCH-12 8 C.C.No.50852/2019
the return of the cheque unpaid and also if drawer fails to make
payment within 15 days from the receipt of the said notice,
complainant can initiate proceedings under Sec.138 of N.I.Act
and if those conditions are fulfilled he being holder of the cheque
enjoys presumption under Sec.139 of N.I.Act.
12. In the present case, cheque is presented within the period
of its validity, and it is returned unpaid for the reason ‘Payment
stopped by drawer’, notice is issued within the period of 30 days
from the intimation of dishonor and notice is served on accused.
The payment not being made within 15 days from receipt of
notice, presumption under Sec.139 of N.I.Act will have to be
drawn in favour of the complainant that the cheque was issued
for discharge of whole or part of the debt or other liability in
favour of complainant and accordingly such presumption is
drawn.
13. The complainant and accused are in business of buying and
selling Apple Laptop is not in dispute. The cheque in question
belongs to the account of the accused is not disputed. But the
signature on cheque belongs to the accused is disputed. When
the signature on cheque is disputed law is settled to the point
how the signature has to be proved. Hon’b;e High Court of
Karnataka in the case of Nasreen Pasha,V.Sri Malik Ahmed, CRL.
R.P. No..52/2016 dt. 15.08.2016 has referred the judgment of
Hon’ble Supreme Court in Ajay Kumar Parmar v/s St. of
Rajasthan ,AIR 2012 SCW 5492 wherein the Hon’ble Apex Court
has opined in the following manner:
“23. The opinion of a handwriting expert is
fallible/liable to error like that of any other
SCCH-12 9 C.C.No.50852/2019witness, and yet, it cannot be brushed aside as
useless. There is no legal bar to prevent the Court
from comparing signatures or handwriting, by
using its own eyes to compare the disputed writing
with the admitted writing and then from applying
its own observation to prove the said handwritings
to be the same or different, as the case may be, but
in doing so, the court cannot itself become an
expert in this regard and must refrain from playing
the role of an expert, for the simple reason that the
opinion of the Court may also not be conclusive.
Therefore, when the court takes such a task upon
itself, and findings are recorded solely on the basis
of comparison of signatures or handwritings, the
court must keep in mind the risk involved, as the
opinion formed by the Court may not be conclusive
and is susceptible to error, especially when the
exercise is conducted by one, not conversant with
the subject. The court, therefore, as a matter of
prudence and caution should hesitate or be slow to
base its findings solely upon the comparison made
by it. However, where there is an opinion whether
of an expert, or of any witness, the court may then
apply its own observation by comparing the
signatures, or handwritings for providing a
decisive weight or influence to its decision.”
14. Further in the aforesaid judgment of Hon’ble High court of
Karnataka, it is held that the power under Sec. 73 of the Indian
SCCH-12 10 C.C.No.50852/2019
Evidence Act can be exercised by the court normally and
generally to test the veracity of the opinion given by the expert or
the other evidence adduced on the point by any of the modes
enumerated under the procedural laws. It is also observed in the
said case as, is true that the courts are called as expert of
experts. But such using of the words will not make the court as
an expert in the true sense. It is said in that manner, because
the opinion of the court is conclusive even on appreciation of the
expert’s opinion. The court is empowered to appreciate the
expert’s opinion on the basis of the materials on record and
conclusively give its finding which is binding on the parties. The
mere opinion of an expert is neither binding on the court nor
binding on the parties. Even by giving cogent reasons court can
reject the expert’s opinion. It is the opinion of the court after
appreciating all the evidence on record that becomes an
authoritative pronouncement of adjudication of the rights of the
parties. Therefore, in this context, the court is recognized as an
expert of experts. But it does not mean to say that the court can
step into the shoes of an expert always in order to do the job of
an expert.
15. In view of above settled point of law in the present case
accused filed application seeking to refer the disputed signature
on the cheque for FSL examination under Sec.45 of Indian
Evidence Act. The said application was allowed by my learned
predecessor in office and sample signatures were taken in the
court. Admitted signature documents namely signature in
vakalath, marriage registration certificate, construction
agreement and sale agreement with specimen signature drawn in
SCCH-12 11 C.C.No.50852/2019
court are sent for FSL examination. The FSL report is received
and it is mentioned in the report that the person who wrote
standard signatures marked at A-2 to 5, A-7 to A-18, A-20 to A-
26, S-1 to S-5 did not write the questioned signature marked at
Q-1 and that signature is produced by the means of imitation
forgery. Therefore, according to FSL expert the signature found
on the disputed cheque on comparing with admitted signatures,
do not belong to accused and they are forged signatures.
16. Since, the opinion of expert is against the complainant, he
filed objection to the report stating that proper examination of
the signatures is not done by the expert. Subsequently, on IA
filed by accused the said expert who gave his report was
summoned to give evidence on the report. The expert is examined
as D.W.4. In her examination she stated that she compared
admitted and disputed signatures and analyzed the same and
opined that they are of negative authorship and they are of
imitation forgery. She is cross examined at length and her cross
examination discloses that she has not used stereoscopic
microscope as the said facility was found in VSC. She has not
found characteristic of tremor in disputed signature, but she
has not mentioned it in her report. She stated that slow
execution and line quality was not proper in disputed
signatures. She stated that with respect to detailed analysis as to
how the signatures are analyzed, separately not mentioned in the
report. She has not mentioned how sample signature
characteristic are different from disputed signatures. She stated
that she has adopted the format of analysis comparasion and
evaluation and she has not mentioned similarities in admitted
SCCH-12 12 C.C.No.50852/2019
and disputed signatures. She stated she only menioned this
similarities, as her opinion is negative authorship. She denied
certain characteristic found in the admitted signatures are also
found in the disputed signatures. Further, she has not taken
into consideration 2 admitted signatures for her analysis which
are A-6 and A-19. She stated that she found unnatural strokes
and they are not fit for examination and hence they are not
considered. Further she stated that, when the time passes there
are chances if change in the signature of person. Counsel for
complainant contended that, complainant had no opportunity to
see the signature of accused herein as entire transaction was
being conducted by the husband of the accused. Therefore,
according to the complainant there is no model signature
available by which imitation forgery could be made. It is
necessary to notice that D.W.1 accused and D.W.2 husband of
the accused both stated that D.W.1 was not involved in the
business and she was unaware of the transactions and it is
D.W.2 who was carrying out the business of the accused.
Therefore, the argument of complainant that he had no
opportunity to see the signature of D.W.1 to commit imitation
forgery is acceptable. It is not the case of accused that, signed
cheques were available with the complainant so that he could
copy the signature. It is also not his contention that accused had
submitted some documents with the complainant which bear the
signature of the accused which could constitute model signature
for imitation forgery. In that view of the matter, the contention
of the complainant that signatures are not forged will have to be
accepted. On careful perusal of FSL report it can be seen that, in
SCCH-12 13 C.C.No.50852/2019
the entire report the expert has not mentioned the similarities
and dis-similarities between the admitted and disputed
signatures depending upon each character, stroke, movement.
On careful perusal of admitted signatures itself, it can be seen
that there are several variations like in A-26 admitted signature
there is dot marks at the end and they are not found in S-1 to S-
5. Therefore keeping in mind the aforesaid settled principles of
law, if the expert opinion other evidence on record is analysed,
which is narrated in this in the further course of judgment, in
the opinion of this court the disputed signature belongs to
accused and she has signed the same by knowing the
consequences of signing the cheque.
17. It is settled law that, the defence of the accused in the
cheque bounce case can be gathered at three different stages,
one is at the time of reply to legal notice, second is at the time of
cross examination of P.W.1 and third is at the time of his own
defence evidence. In the present case accused not issued reply to
legal notice. Hence, there is no defence at that stage. In the
demand notice complainant stated that, accused is having
transaction with the complainant since 2016-17 for Apple
products and accused has issued aforesaid cheque towards
discharge of interest for delayed payment as on 16.10.2018 and
it is returned for the reasons payment stopped by the drawer.
Further he demanded accused to pay the cheque amount within
15 days failing which he would be constrained to initiate legal
proceedings and also prosecute in civil court for recovery of the
amount with interest at 24% p.a for the delayed payment as
SCCH-12 14 C.C.No.50852/2019
specified in the invoice. Neither the invoice nor the interest
claimed in the notice are denied by the accused by issuing reply.
18. Accused contended that demand notice itself is defective
and therefore,complaint is not maintainable. According to him,
the fact of 11 invoices is not mentioned in the demand notice,the
date of invoices and specific amounts in each invoice is not
mentioned in it, therefore on the basis of that demand notice
complaint could not have been filed. It is necessary to notice that
what is stated in demand notice is mentioned above. Form of
demand notice is not prescribed in NI Act. It only says, demand
notice shall be issued within prescribed time. The requirement is
to make known to the accused as to what is pending due from
him and that cheque issued by him got dishonoured which
would lead to criminal offence, so that accused can pay the debt
within 15 days from the date of notice and avoid criminal action.
If those facts are mentioned, the requirement is met. It is not
necessary that complainant should explain his entire case in
demand notice. The settled position of law on the requirements of
demand notice is held in the case of Suman Sethi Vs. Ajay K.
Churiwal & Another (2002) 2 SCC 380 as under:
In the notice, demand has to be made for the “said amount” i.e. cheque amount.
If no such demand is made the notice no doubt would fall short of its legal
requirement.
Further in the case of Central Bank of India & Anr. v. M/s.
Saxons Farms & Ors., JT (1999) 8 SC 58 it is held as under:
The object of the notice is to give a chance to the drawer of the cheque to
rectify his omission Though in the notice demand for compensation, interest,
cost etc. is also made drawer will be absolved from his liability under Section if
SCCH-12 15 C.C.No.50852/2019he makes the payment of the amount covered by the cheque of which he was
aware within 15 days from the date of receipt of the notice or before complaint
is filed.
19. In that view of the matter, these requirements are met in
Ex. P.3 legal notice and it cannot be called as omnibus, invalid or
defective notice. It is necessary to note that in cross examination
of P.W.1 accused stated that complaint has failed to give credit
note or discounts at 18% as agreed and therefore complainant
himself is in due of huge sum for the past one year to the
accused. In common knowledge, if in one transaction proper
discounts are not given as agreed and purchaser is made to pay
higher amount having less profit and dealer does not respond
properly, any prudent businessman would stop the transaction
with such dealer and demand for recovery of any due pending
from him. In the present case, even though complainant allegedly
has not given discount as agreed and kept huge amount of dues
to the accused, not for one transaction but for last one year, why
accused continued the business with the complainant is a
question. The answer is clear and obvious that the business was
profitable to him and therefore, without demanding any discount
or alleged credit note he continued business with the
complainant. Complainant denied that he has issued or
promised any credit note to the accused. It is necessary to note
that credit note or the promise of discount on sale of each
product or certain number of products is a pure form of contract.
If such promise or contract is entered between the parties, that
requires to be proved by cogent evidence. In this case there is no
distribution agreement specifying the same, nor there is any
SCCH-12 16 C.C.No.50852/2019
written document to which shows such discount was agreed.
Accused relied upon his own ledger entries on the basis of whats
app communication between himself, and two staff of
complainant, against whom complainant filed case of criminal
conspiracy, cheating and breach of trust, misappropriation of
funds etc. in collusion with accused herein in crime
No.421/2018.
20. The allegation in the said case is accused herein along with
her husband conspired with 2 staff of the complaint namely
Vasudha and Kavitha who are sales head and accountant
respectively in the complainant proprietor concern, have floated
their own companies by name Viva Info solutions and Exponet
respectively for sale of apple products. The same was said to be
done with the active connivance of husband of the accused
herein who was ex-employee of Ingram micro, the dealer of
complainant. It is alleged in the said FIR that without knowledge
and consent of the complainant herein aforesaid two staff of the
complainant used to place orders before the Ingram and
Redington companies who are main dealers of the complaint on
credit basis and procure products, then they use to sell the said
products without bills to the accused concern herein by which
their respective companies and accused concern will be in profit
and the complainant in huge loss and indebtedness to his
dealers. It is also stated that aforesaid two staff of the
complainant used to contact the customers of the complaint and
tell them that they would give the apple products for lesser price
than that of the complainant herein, which led the customers
buy products from them and not from the complainant, which
SCCH-12 17 C.C.No.50852/2019
led to loss in the market to the complainant, and that as the
products were bought on credit basis, he has to pay interest for
delay to his dealer. On this allegation said FIR is registered. The
records show that Halasuru police have investigated the matter
and filed charge sheet against 6 persons in this regard including
the accused and her husband herein along with aforesaid staff of
complainant.
21. It is important to mention that the said charge sheet is filed
in 2020 and FIR was in 2018. Accused has not challenged the
same and it is stated that trial is pending against the accused
before the competent court. That apart, even after several years
of the transaction i.e. even till now he has not initiated any civil
recovery proceedings against the complainant for recovery of
alleged promised discount/credit note. In the arguments it is
stated that due to huge court fee to be payable for recovery of
huge sum of money, accused not initiated any proceedings. The
said contention is not acceptable for a simple reason, that if the
claim is genuine no prudent businessman would sit quite
without making claim for crores of amount only for the reason of
payment of court fee. It is necessary to mention here itself that if
there is discount pending to be paid to the accused and it is part
of the promise and contract between the parties, accused should
file a civil suit and recover the same is also an observation made
by the Hon’ble High court of Karnataka in Crl.P. No 1086/2021
produced at Ex. P.16 in connected case, in which complainant
has challenged the FIR filed by the accused and the petition
came to be allowed and FIR is quashed as per certified copy of
SCCH-12 18 C.C.No.50852/2019
the order. Further in his evidence DW2 husband of the accused
admitted that the said order is confirmed in Hon’ble Supreme
Court by dismissing the petition filed by him challenging the said
order. Therefore, in the opinion of this court, on the basis of
whatsapp communication in which staff of the complainant
assured accused to give discount and spoke about credit note, it
cannot be said that there was such promise by complainant
herein credit note or discount to be payable to him.
22. A point which requires note herein is that as per defence
evidence of DW2 husband of the accused, there were two whats
app groups created by the staff of the complainant in which
himself, Vasudha and Kavitha were members. According to
accused the group was for the purpose of sharing the purchase
orders and to communicate regarding the transactions. It is
relevant to note that complainant herein was not the said group
member and there is no proof that whatever chat happened in
the group was communicated to complainant when he is not a
member of it. Accused contended that there is another forum
called Edmodo in which Kavitha, Vasudha and complainant were
members in which all the purchase orders, billing details and
pricing of complainant’s customers was communicated in that
group and therefore complainant was aware of those aspects. The
very fact that only aforesaid 3 persons communicated in two
whatsapp groups excluding the complainant indicates that they
wanted to exclude the complainant from certain conversations
and avoided his presence in the group. Certain screen shots of
the aforesaid two whatsapp groups and transcripts of the
Edmodo forum are produced by the DW2. Screen shots of the
SCCH-12 19 C.C.No.50852/2019
aforesaid two whatsapp groups show that accused was
demanding discounts and staff of the complaint were bargaining.
In fact he was asking for aggressive pricing and sometimes staff
of the complainant mentioned that it is not possible. Those chats
in screen shots can be found at Ex.D.18 in connected case,
where accused quoted discount and Vasudha accepted. This is
goes to show that instead of placing his order for products DW2
used to state what is the discount payable to him and most of
the time staff of the complainant obliged to it. It is this discount
he is claiming as credit note from the complainant.
23. It is relevant to mention that at Ex.P.38 in connected case
complaint has produced a letter by aforesaid Kavitha to the
complaint that DW2 used to threaten her that he would inform
about their business to her boss and she was scared and
therefore she used to bill in his favour. This letter is disputed by
the accused stating the same is written at the request of
complainant to support his complaint before police. The veracity
of that letter, the alleged conspiracy, fraud, cheating, criminal
breach of trust etc are not the question to be decided before this
court, as the trial is said to have pending before the competent
court, the said aspects should undergo the test of trail. The only
point which is relevant in respect of credit note herein is whether
to avoid liability to pay alleged credit note of Rs. 4.95 crores to
accused, complaint has filed this case against the accused for
similar amount as due from the accused. In the light of this
background, it is relevant to note that complainant has filed a
civil suit in Com. O.S. No 514/2021 for recovery of cheque
SCCH-12 20 C.C.No.50852/2019
amount in this case and other dues from the accused and the
copy of plaint in that case is produced at Ex. P. 23 in connected
case. Having said that accused has not filed any recovery
proceedings against the complainant, he has not sought counter
claim also in the said Com.O.S. Therefore the only inference that
could be drawn is accused is trying to avoid his liability to pay
the cheque amount to the complainant.
24. That apart to show how the accused and staff of complaint
are conspired to cause loss to the complainant, PW1 has
produced rental agreements of office of Vasudha and accused in
respect of same building and husband of the accused as witness
to rental agreement of Vasudha, the transactions with viva info
solutions, company of Vasudha and amount received by accused
from that company to the tune of 5,77,52,000/- and sales made
by the accused to that company to the tune of Rs.3,83,99,830/-,
code of conduct of the Ingram Micro company in which DW2 was
working, to show that DW2 acted against the code while he was
working there as he opened company in the same business in the
name of his wife accused herein, and later after filing of criminal
case staff of the complaint ie. Vasudha and Kavitha resigning
from the office of the complainant in the connected case. To
show, motive, preparation, previous and subsequent conduct of
the parties which is relevant under Sec.8 of the Evidence Act
those document are produced but they are to be considered in
the pending criminal case and not in this NI Act proceedings.
Therefore in the opinion of this court, no much discussion is
necessary on those documents.
SCCH-12 21 C.C.No.50852/2019
25. Yet another contention of the accused is that 11 invoices
mentioned in the complaint are fake, UDID numbers of the
products are repeated in certain invoices as stated in cross of
PW1 and in his written arguments. Further he contended that he
has already made the payment to complainant in respect of those
11 invoices and there is no due as alleged. He has produced excel
sheet in his evidence at Ex.D.48 in the connected matter, to
show how he has made the payment and on which dates. The
date wise payment can be found in the list in written arguments
also of the connected case. It is necessary to notice that accused
is trying to say two things at a same time. It can be either of two
things, Meaning, either 11 invoices are fake, so he is not liable to
pay any amount mentioned in fake invoice to complainant, or
invoices are genuine and he has made all payments to the 11
invoices as such there is no due. There cannot be 11 invoices
are fake but still he made all payment to those invoices. Hence it
can be inferred that accused is trying to approbate and reprobate
at the same time which makes his defense improbable.
26. That apart, if his contention that he has made payment to
those invoices is believed, he must be possessing the copies of
those invoices with him with endorsement that amount received.
On perusal of the invoices at Ex.P.1 in the connected case, it can
be seen that amounts are in lakhs and some are beyond 50 lakhs
and no mention as to advance payment on them. Further, as per
the contention of the accused he has paid the amount in the
invoices even before the invoices are raised and subsequently,
they are raised by complaint to make a false claim. He admitted
his shara on ledger of the complainant that he agreed to pay the
SCCH-12 22 C.C.No.50852/2019
dues but contended that shara was written as the complainant
threatened him and put him in coercion and also that CCTV
footage of office of the complainant shows the threat put on the
accused, but complainant has not produced the said CCTV
footage. It is relevant to note that in respect of alleged threat or
coercion, accused could have approached the police immediately
stating huge amount showing to be pending in ledger got signed
by the complainant though there was no such due, and all the
amount is paid. But he approached police by filing compliant on
26. 02. 2019 and FIR No. 34/2019 is registered against the
complainant herein in Wilson Garden Police station. The same is
challenged by the complainant in Crl. P. No.1086/2021 in which
the FIR came to be quashed on 06.07.2021.
27. Yet another contention of the accused is that complaint
has not submitted the CRT claims as directed by the court and
as per the CRT claims complaint used to get the benefit or rebate
on the sale of products by the Apple company. Complaint
contended that the same is between the complainant and the
apple company and accused has no say in it. It is relevant to
note that CRT is conditional rebate tool given by the apple
company which is discount on the product sold to the
educational institution. According to accused, complainant has
made false CRT claim before the apple company and notice was
issued to him for making false claim. Complaint contended that
his staff Kavitha and Vasudha had submitted CRT claims and
later he found that they have made false claim and reply is given
to apple company in that regard. It is contended by the accused
that since apple company has issued notice to the complainant
SCCH-12 23 C.C.No.50852/2019
regarding false claim, complainant is in the habit of making false
claims. It is necessary to notice that in respect of making false
claims before the apple company, the same is subject matter of
contract between the Apple and complainant as per the re seller
agreement and dispute among them will have to resolved as per
the terms of agreement, that has nothing to do with the invoices
in the present case.
28. It is vehemently contended by the accused that
complainant has repeated UDID numbers in certain invoices and
made double GST declaration for the same products in respect of
several invoices, namely, invoice no. 100, 188 and 296. None of
them are the invoices involved in the present case. He contended
that since such double billing is made, accused is shown to be
having huge amount of balance payable as per the ledger.
Complainant stated in cross examination about repetition of
UDID numbers that complaint would never sell the products by
mentioning UDID numbers but only sells by mentioning part
numbers, as the police asked to give details of the products sold
with serial numbers, for the purpose of investigation, they have
mentioned it in invoice. Further in cross examination dated
22.09.2022 he mentioned that he came to know that accused in
collusion with staff of the complainant took products without
invoices, and therefore all bills were raised on same day and on
the next day e-way billing is made. This statement of the
complaint that all bills were raised on the same day for the
products taken by the accused without billing is not denied by
the accused in cross of PW1 in the connected case.
SCCH-12 24 C.C.No.50852/2019
29. The very contention of the accused that complainant has
repeated UDID numbers in certain invoices and made double
GST declaration for the same products in respect of several
invoices clearly supports the contention of the complainant that
accused received products without invoices. As per the
contention of the accused, he used to place purchase orders,
complainant used to raise invoices, and then complainant would
supply materials as per said orders. If that is so, for the products
purchased by the accused, there should have been invoices in
his hand to show whether advance payment is made, or it is on
credit basis, whether cheque is received or not. But as per his
evidence even before that he had sold the products in those
invoices to different customers. This means, even before the
invoice is raised, or without invoice being raised by the
complainant accused received the products and sold the same to
customers. According to him, he has even made payment to
complainant for those invoices which cannot be believed as no
acknowledgment for receipt of money in advance is found on any
invoice or there is no separate receipt to show that accused paid
the amount in advance for the products mentioned in Ex.P.1 in
connected case.
30. Much has been argued on the point that complainant had
knowledge about the transactions being made by the accused
and he used to receive SMS e-mail etc., in respect of every invoice
raised in his name by the dealer. But the point here is not about
the invoices in the name of the complaint, but about the invoices
in the name of the accused. The principle of law of contract
requires mention here i.e caveat emptor, that buyer be aware.
SCCH-12 25 C.C.No.50852/2019
Whenever he placed order for purchase of electronic product, it is
the duty of the accused to collect invoice get it signed as to
whether payment made or not, whether credit given, what is the
amount of discount, if any etc and what is the payment of
interest if there is delay in making payment. Without such
entries, he cannot contend that amount paid by him are for the
invoices mentioned in the complaint. Further, the invoices
produced in the connected case show that there is mention about
24% interest if the payment is not made.
31. In the present case, complainant produced details as to
how the interest is calculated at Ex.P.23 and it shows total
interest is Rs.1,46,73,890/- and the said cheque is for
Rs.1,40,00,000/-. As per Ex.P.11 accused sent e-mail on
31.07.2018 to complainant stating he would clear overdue
payment by this week bearing interest charges too. This gives an
indication that, there was understanding between the parties as
to the interest to be paid if delay is made in making payment.
Further in cross of D.W.2 he admitted that on several occasions
he paid interest when there was delay in making payment. There
is admission in respect of agreement regarding interest. This
admission falsifies the contention of the accused that there was
no agreement at all regarding interest. The interest is calculated
from 2016 till 2018 October. That cheque is issued on
16.11.2018 which got dishonored. In business when parties have
an understanding about the interest on delayed payment and
also made certain payment of interest when there was delay, it
cannot be said that there was no agreement in respect of
SCCH-12 26 C.C.No.50852/2019
interest. Therefore, oral and documentary evidence produced in
the above case does not probabalise the defence of the accused
and therefore, presumption is not rebutted by the accused.
Hence, in the opinion of this court accused has not rebutted the
presumption under Section 139 of N.I.Act and he has not made
out any probable defence.
32. As such, complainant has proved the guilt of accused
beyond reasonable doubt. Therefore, accused being
representatives Mahatru technologies, proprietorship concern
will have to be convicted. She stated that she was not aware of
any transactions of the accused and her husband DW-2 used to
take care of entire business. She being proprietor of the accused,
her ignorance will not absolve her from liability. This case is filed
in December 2018 and it is being decided in December 2024. 6
years are elapsed from the date of filing of the case. But, in this
case complainant has sought for 24% interest on the invoice
amount for delayed payment, which is quite on higher side,
therefore considering the nature of transaction and the rate of
interest claimed this court is not inclined to grant double the
cheque amount as compensation to the complainant and it is
only proper if the cheque amount is awarded as compensation to
the complainant. Hence, in the opinion of this court if accused is
convicted for Rs.1,40,10,000/- and complainant is compensated
with the amount of Rs.1,40,00,000/- and remaining Rs.10,000/-
is remitted to state, interest of justice would be met. Hence, I
answer this point in the Affirmative.
33. Point No.ii : In view of above findings accused will have to
be convicted. Hence, I proceed to pass the following :
SCCH-12 27 C.C.No.50852/2019
technologies, proprietorship concern is
convicted for the offence punishable under
Sec. 138 of Negotiable instruments Act.
Consequently, accused is directed to
pay fine of Rs.1,40,10,000/- failing which
she shall undergo simple imprisonment for
a period of 1 year.
Under Sec.357(1) of Cr.P.C. out of fine
amount an amount of Rs.1,40,00,000/-
shall be paid to complainant as
compensation and remaining Rs,10,000/-
shall be remitted to state.
It is made clear that in view of Sec.
421(1) of Cr.P.C even if the accused
undergoes the default sentence imposed
above, accused is not absolved of liability to
pay the fine amount.
Bail bond and surety bond of the
accused stand cancelled.
Issue free copy of this judgment to
accused.
[
(Dictated to the Stenographer, directly computerized by her, then corrected, signed and
then pronounced in the open court on this the 19th day of December, 2024)
(Vidyalaxmi Bhat)
XI Addl.SCJ & ACMM,
Bengaluru.
SCCH-12 28 C.C.No.50852/2019
ANNEXURE
1. List of witnesses examined on behalf of the complainant :
P.W.1 – Dr.Mohit R.Hegde
2. List of exhibits marked on behalf of the prosecution :
Complainant Side
Exhibits Document
Ex.P.1 Cheque
Ex.P.2 Bank endorsement
Ex.P.3 Office copy of the legal notice dt.12.12.2018
Ex.P.4 Bank endorsement
Ex.P.5 2 Postal receipts
Ex.P.6 Postal track
Ex.P.7 Ledger extracts ( 3 in nos)
Ex.P.8 to 10 Voucher ( 3 in nos)
Ex.P.11 E.mail record
Ex.P.12 Certified copy of FIR in Crime No.421/2018 of
Halasuru Gate police station
Ex.P.13 Certified copy of complaint
Ex.P.14 Certified copy of charge sheet
Ex.P.15 Certified copy of FIR in Crime No.34/2019
Ex.P.16 Certified copy of complaint
Ex.P.17 Certified copy of order sheet in PCR No.2454/2019
Ex.P.18 Certified copy of complaint in PCR No.2454/2019
Ex.P.19 Certified copy of list of documents
Ex.P.20 Certified copy of affidavit produced in PCR
Ex.P.21 Certified copies of current a/c, SBI a/c, pan card,
aadhaar card, VAT registration,bank statement along
with charge sheet produced by Halasuru police (pg
No.879 to 912)
Ex.P.22 Certified copy of balance sheet dt.31.03.2018 (pg
No.395 to 400)
SCCH-12 29 C.C.No.50852/2019Ex.P.23 Total interest on delayed payment in workings from
2016-17 to 2018-19
Ex.P.24 I.T pertaining to the year 2017-18 (Sec.65B evidence
act certificate produced)
Ex.P.25 I.T pertaining to the year 2018-19 (Sec.65B evidence
act certificate produced)
Ex.P.26 I.T pertaining to the year 2019-20 (Sec.65B Evidence
act certificate produced)
Ex.P.27 Certificate under Sec.65B of Indian Evidence Act
3. List of witnesses examined on behalf of the accused :
D.W.1 - Pranitha H.G
D.W.2 - Sharath Gowda
D.W.3 - Kumar Abhay
D.W.4 - Dr.Bhavana Desai
4. List of exhibits marked on behalf of the accused:
Ex.D.1 Invoices ( 6 in nos)
Ex.D.2 Document regarding mismatch of UDID numbers
Ex.D.3 E.mail dt.16.11.2018 of Ninja Distributors
Ex.D.4 Ledger account extract of Ninja Distributors
Ex.D.5 Certificate under Sec.65B of Indian Evidence Act
(Vidyalaxmi Bhat)
XI Addl.SCJ & ACMM,
Bengaluru.
Digitally signed
by
VIDYALAXMI
VIDYALAXMI BHAT
BHAT Date:
2024.12.19
17:54:46
+0530