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Bangalore District Court
M/S Tbs India Telematic And Biomedical … vs Arogya Yoga Samsthe (Suyog Hospital) on 23 April, 2025
KABC0C0066082021
IN THE COURT OF XIV ADDL.CHIEF JUDICIAL
MAGISTRATE, MAYOHALL UNIT, BENGALURU
Dated this the 23rdday of April, 2025
Present: Sri.SANTHOSH S.KUNDER., B.A.,LL.M.,
XIV Addl. C.J.M., Bengaluru.
JUDGMENT UNDER SECTION 355 of Cr.P.C
C.C.No. 52005/2021
M/s TBS India Telematic &
Complainant Biomedical Services Pvt.Ltd.,
5th Floor, Arden Fair,
Opp: Benniganahalli Ring Road Flyover,
Pai Layout, Near Tin Factory,
Old Madras Road, Bengaluru.
(By Sri.Kashyap Naik & Vivek.B.R.,
Advocates)
V/s
Accused 1. Arogya Yoga Samsthe (Suyog Hospital),
No.P/2, Dakshineshwara Road,
E & F Block, Ramakrishna Nagar,
Mysuru.
2. Dr.S.P.Yoganna,
Managing Partner
(Suyog Hospital)
No.P/2, Dakshineshwara Road,
E & F Block, Ramakrishna Nagar,
Mysuru.
Also at: Shashank C Rao Road,
Ramakrishnagar, Mysore.
Also at: 05, Swimming Pool Road,
Fire Brigade, Saraswathipuram,
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Mysuru.
3. Mrs.Sudha Yoganna,
Partner
Arogya Yoga Samsthe (Suyog Hospital)
No.P/2, Dakshineshwara Road,
E & F Block, Ramakrishna Nagar,
Mysuru.
Also at: Shashank C Rao Road,
Ramakrishnagar, Mysore.
Also at: 05, Swimming Pool Road,
Fire Brigade, Saraswathipuram,
Mysuru.
(By Sri.Narendra D.V.Gowda &
Smt.Sandhya S.B., Advocates)
Offence U/s 138 of Negotiable Instruments Act
Plea of the Pleaded not guilty
accused
Final Order Accused are held guilty & convicted
This complaint is filed under Section 200 of Cr.P.C,
for the offence punishable under Section 138 of the
Negotiable Instruments Act.
2. Complaint averments in brief:
2.1. Complainant is a company incorporated under
the Companies Act, 1956. It is engaged in the business of
distribution and sale of medical equipment. Accused No.1
is a registered partnership firm, having its office at
Ramakrishna Nagar, Mysuru. Accused No.2 and 3 are the
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partners of accused No.1. They are in-charge of and
responsible for the day-to-day affairs of accused No.1.
2.2. Sometime during 2017, accused No.1,
represented by accused No.2 and 3 approached the
complainant and sought for right/license to use certain
medical equipment on the pretext that accused No.1 is
opening a hospital in Mysore in the name and style of
'Suyog Hospital'. After mutual discussions and
negotiations with representatives of accused No.1,
complainant agreed to provide medical equipment to
accused No.1. Accordingly, a 'User Fee Agreement' ('the
agreement') was executed by and between the
complainant and accused No.1, represented by accused
No.2 and 3 on 29.06.2017. The said agreement was for a
period of six years. Simultaneously, on the same day,
accused No.1, represented by accused No.2 and 3 also
executed an indemnity bond in favour of the complainant.
On 30.06.2017, one Mrs.Seema Yoganna, Mr.Suyog
Saligramma Yoganna and Dr.R.Rajendra Prasad have
jointly executed a Deed of Personal Guarantee in respect
of the agreement, in favour of the complainant.
2.3. As per the said agreement, accused No.1 was
required to pay the user fee on a monthly basis for a
period of 72 months along with applicable tax to the
complainant. They are required to pay the user fee within
seven days from the date of invoice, failing which, it was
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also liable to pay interest on the said invoice amount @
18% per annum from the date of default till payment.
Further, as per the agreement, in case of failure on the
part of accused No.1 to the pay the user fee for two
consecutive months, the complainant would be entitled to
terminate the agreement without prior notice and to take
back all the equipment. If the agreement was terminated
by the complainant due to default of accused No.1 in
clearing the invoice, it is liable to pay ₹10,00,000/- to the
complainant as one-time movement charge. The above
terms were mutually agreed and accused No.1,
represented by accused No.2 and 3 entered into the
agreement voluntarily and thus, they are bound by the
terms thereof.
2.4. It is averred that the agreement contained
comprehensive list of equipment provided for use of the
accused by the complainant and the approximate net
worth of the equipment is ₹15,00,00,000/-. In pursuance
of the agreement, during November, 2017 the equipment
was supplied to the accused No.1 for use. However, the
accused requested the complainant not to raise any
invoice for a few months initially as the hospital was not
yet opened. Although, the said proposition was going to
cause loss to the complainant, with the sole intention of
maintaining cordial business relations with accused No.1,
the complainant obliged to the request of the accused and
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did not raise invoice. Hospital started its operations only
during June, 2018 and thereafter, the complainant
started raising invoices regularly. However, none of the
accused had informed the complainant about the exact
date of commencement of the hospital. Based on the
terms that were discussed, the complainant supplied the
equipment to the accused. Thus, there was no delay
caused by the complainant. Despite its promptness, the
complainant had to incur undue loss due to lapses of the
accused. However, the complainant decided to condone
the said lapses in order to continue its business with the
accused.
2.5. After the commencement of the hospital, the
complainant raised invoices regularly. However, the
accused failed to clear even a single invoice in time. The
accused would pay partly after much follow-ups and
reminders. Till date, not even a single invoice has been
cleared in one payment or in time. Several of such
invoices are pending. Although, the complainant had right
to terminate the agreement, with the sole intention of
maintaining cordial business relations, the complainant
did not take any drastic step and kept following up with
the accused for clearing the dues. Every time the
complainant enquired about the payment, the accused
gave one or the other excuse and evaded payment.
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However, in all of its communications, the accused
admitted their liability towards the complainant.
2.6. It is averred that after much follow-ups,
reminders and requests, it became clear to the
complainant that the accused had no intention of making
payments due to the complainant. The accused had
unjustly enriched themselves at the cost of the
complainant, which is highly unethical, unprofessional
and untenable. Therefore, exasperated by unacceptable
behavior of the accused, the complainant issued a notice
of termination to accused No.1 on 06.11.2019 and
terminated the agreement dated 29.06.2017 and called
upon the accused to clear the dues and informed of its
intention to take back the equipment.
2.7. Accused No.1 replied to the termination notice
on 14.11.2019 by denying its contents and made baseless
assertions and allegations against the complainant. Thus,
it became clear to the complainant that the accused had
no intention of honouring the obligations under the
agreement and were unjustly enriching themselves. Till
date, accused No.1 has paid a sum of ₹1,40,00,000/- to
the complainant under the agreement. After deduction of
the said amount, accused No.1 is liable to pay
₹5,72,19,500/- to the complainant. However, the tone and
tenor of reply given by the accused made it clear to the
complainant that they had no intention to clear the dues.
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Thus, left with no other alternative, the complainant
decided to deposit the cheque issued by accused No.1 by
informing the accused on 07.01.2020. The accused were
also called upon to maintain sufficient balance to honour
the cheque. The complainant deposited the cheque
bearing No.586627, dated 08.01.2020 drawn on Punjab
National Bank, Saraswathipuram, Mysore for a sum of
₹5,72,19,500/- with its banker, viz., ICICI Bank,
Commissariat road branch, Bengaluru. The said cheque
was issued by accused No.1 and signed by accused No.2.
However, the complainant was shocked and disappointed
to learn that the cheque was dishonored for the reason
'insufficient funds', vide dishonor memo dated
10.01.2020. In view of dishonor of the cheque, the
complainant got issued a legal notice to all the accused on
31.01.2020. The said notice was duly served on all the
accused on 03.02.2020. The accused got issued a joint
reply dated 15.02.2020 by making baseless allegations
and assertions on the complainant. However, they have
admitted the execution of the agreement dated 29.06.2017
and issuance of the cheque in question. In view of the
non-compliance of the demand made in the notice by the
accused, left with no other alternative, the complainant
has filed the present compliant.
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3. This court took cognizance of the offence
punishable under Section 138 of N.I.Act. Authorized
representative of the complainant by name, Papanna has
filed sworn statement affidavit. He was examined on oath.
As there were prima facie materials, criminal case was
registered and all the accused were summoned.
4. In response to the process, accused No.2 and 3
appeared before the court and got enlarged on bail. After
compliance of Sec.207 of Cr.P.C, this court recorded their
plea by reading over the substances of accusation. They
have pleaded not guilty and claimed to be tried.
5. Sworn statement affidavit of authorized
representative of the complainant treated as evidence
post-cognizance stage. He was examined as CW-1.
Documents at Ex.P-1 to 34 marked for the complainant.
Accused have filed application under Section 145(2) of NI
Act, seeking permission to cross-examine CW-1.
Accordingly, they were permitted to cross-examine.
6. After the closure of evidence of complainant,
statement of the accused No.2 and 3 under Section 313 of
Cr.P.C recorded. They have denied the incriminating
evidence. The accused have examined accused No.2-
Dr.S.P.Yoganna as DW-1 and got marked documents at
Ex.D-1 to 22.
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7. Advocate for the complainant addressed
argument. Accused No.2 in-person addressed argument.
On behalf of accused No.3, learned Senior advocate
addressed argument. Accused No.2 has filed synopsis of
argument on 27.08.2024 and additional written argument
dated 25.02.2025.
8. I have perused the records.
9. Points for consideration:-
1. Whether the complainant has proved
that accused No.2 and 3 as partners of
accused No.1, have issued cheque
bearing No.586627 dtd.08.01.2020 for
₹5,72,19,500/-, drawn on Punjab
National Bank, Saraswathipuram,
Mysore, in favour of the complainant
towards discharge of legally recoverable
debt/liability and the said cheque was
dishonored for the reason 'funds
insufficient' and in spite of service of
statutory notice dated 31.01.2020, the
accused have failed pay the amount
covered under the said cheque and
thereby they have committed the offence
punishable under Section 138 of N.I.Act?
2. What order?
10. The above points are answered as under:-
Point No.1 : In the affirmative.
Point No.2 : As per final order for the following:
REASONS
11. Point No.1:- The case of the complainant is that
accused No.1, through accused No.2 and 3 approached
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the complainant for right/license to use certain medical
equipment by representing that they are opening a
hospital in Mysore and accordingly, User Fee Agreement
dated 29.06.2017 was entered into between the
complainant and the accused for a period of six years. It is
also contended by the complainant that, as per the terms
of agreement, the complainant provided equipments worth
of ₹15,00,00,000/- to the accused for their use. It is also
contended that as per the terms of the agreement, the
accused persons are liable to pay user fee on a monthly
basis for a period 72 months along with applicable tax
and also liable to pay ₹10,00,000/- as one time movement
charge to the complainant in the event of termination of
the agreement, in case of failure on the part of accused
No.1 to pay User Fee two consecutive months. The
complainant alleges that the accused have paid a sum of
₹1,40,00,000/- to the complainant under the User Fee
Agreement and they are in due a sum of ₹5,72,19,500/-
towards user fee. Since, the accused persons have failed
to pay the said amount, the complainant presented the
subject cheque for encashment and the same came to be
dishonored for the reason 'funds insufficient'. It is alleged
that the accused have failed to pay the dishonored cheque
amount in spite of service of demand notice. Therefore,
this complaint is filed.
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12. In order to prove the case, the complainant has
examined its authorized representative - Papanna as
CW-1, who filed affidavit reiterating the complaint
averments. Documents at Ex.P-1 to 34 marked for the
complainant. Ex.P-1 is cheque; Ex.P-2 is bank
endorsement; Ex.P-3 is copy of the legal notice dated
31.01.2020; Ex.P-4 to 11 are postal receipts; Ex.P-12 to
19 are postal acknowledgment cards; Ex.P20 is reply
notice dated 15.02.2020; Ex.P21 is extract of Board
resolution of complainant dated 20.02.2020; Ex.P22 is e-
mail; Ex.P23 and 33 are Section 65(B) certificates; Ex.P24
and 34 are certified copies of user fee agreement dated
29.06.2017 (both are same documents); Ex.P25 is certified
copy of amendment to User Fee Agreement dated
29.06.2017; Ex.P26 is certified copy of indemnity bond
dated 29.06.2017; Ex.P27 is certified copy of deed of
personal guarantee dated 30.06.2017; Ex.P28 is certified
copy of termination notice dated 06.11.2019; Ex.P29 is
certified copy of reply dated 14.11.2019 issued to Ex.P28;
Ex.P30 is PAN Card of complainant; Ex.P31 is GST
registration certificate of complainant; and Ex.P32 is
income tax returns of complainant for the assessment
year 2021-22.
13. On the other hand, accused No.2 has
examined himself as DW-1 and produced documents at
Ex.D1 to 22. Ex.D1 is certified copy of sworn statement
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affidavit of CW-1 in CC.No.15006/2021; Ex.D2 is certified
copy of claim petition filed in A.C.No.176/2021; Ex.D3 is
certified copy of issues framed in A.C.No.176/2021; Ex.D4
is letter dated 17.12.2019 addressed by the complainant;
Ex.D5 is e-mail dated 07.01.2020; Ex.D6 is certified copy
of registered deed of reconstitution of partnership dated
26.09.2018; Ex.D7 is certified copy of amended deed of
partnership dated 08.01.2014; Ex.D8 is certified copy of
deed of partnership dated 18.07.1998; Ex.D.9 is certified
copy of application in Com.A.A.No.24/2020 along with
interlocutory application and order dated 03.11.2020;
Ex.D.10 is certified copy of list of equipment; Ex.D.11 is
certified copy of list of equipment installed; Ex.D.12 is
certified copy of revenue sharing schedule to amended
User Fee Agreement dated 01.06.2018; Ex.D.13 is certified
copy of statement of revenue sharing; Ex.D.14 is certified
copy of statement of amount paid to complainant; Ex.D.15
to 20 are certified copies of letters with statements of
revenue generated from the equipment; Ex.D.21 is
certified copy of letter dated 10.03.2019 addressed to
complainant; and Ex.D.22 is certified copy of Award
passed in A.C.No.176/2021.
14. CW-1 and DW-1 were cross-examined by their
respective adversary at length. During cross-examination
of CW-1 dated 13.07.2022, it is elicited that the
complainant has also filed Arbitration case No.176/2021
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against the accused and the same is pending. It is elicited
that CW-1 has also deposed as a witness in
C.C.No.15006/2021 filed against one Dr.Rajendra Prasad.
He has admitted that the transaction pertaining to said
complaint and the present complaint, are one and the
same. Certified of copy of deposition of CW-1 in
CC.No.15006/2021 has been confronted and the same is
marked at Ex.D1. It is elicited that in the year 2018,
Amended User Fee Agreement was entered into between
the complainant and the accused and the same has not
been pleaded in the complaint and in the affidavit
evidence. CW-1 has stated that he has produced the said
document in arbitration case and a copy of the same will
be produced in this case after obtaining certified copy of
the same. CW-1 has denied the suggestion that the said
document has been suppressed in arbitration case also. It
was suggested that Amended User Fee Agreement came
into effect from 01.06.2018 and its tenure is six years. It
is elicited that the accused do not have right to sell the
equipments that were supplied by the complainant and
they are only entitled to use the same on rental basis. It is
elicited that Amended User Fee Agreement was entered
into for the reason that the accused have requested for
reducing the advance amount.
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15. Complainant has got marked certified copies of
User Fee Agreement, Amendment to User Fee Agreement,
Indemnity Bond, Deed of Personal Guarantee, termination
notice dated 06.11.2019 and reply notice dated
14.11.2019 through CW-1 during cross-examination
dated 21.07.2022. Those documents are marked at
Ex.P24 to 29 respectively.
16. Before proceeding further, it is necessary to
note that the parties are not at lis, in so far as entering of
User Fee Agreement (Ex.P24/P34) between the
complainant and the accused, is concerned. It is also to
be noted that the parties are also not at lis with regard to
execution of amendment to User Fee Agreement, marked
at Ex.P25. In this regard, it is relevant to point out the
cross-examination of DW-1 dated 16.01.2023, where he
has categorically admitted the execution of these
documents. Relevant portion of deposition of DW-1 dated
16.01.2023 is extracted as under:-
"ನಿಮ್ಮ ಮತ್ತು ದೂರುದಾರರ ನಡುವೆ ಆಗಿರುವ ಯೂಸರ್ ಫೀ
ಅಗ್ರಿಮೆಂಟ್ ನಿಪಿ.24 ರ ದಾಖಲೆಯಾ ಎಂದರೆ ಸಾಕ್ಷಿ ಹೌದು
ಎನ್ನುತ್ತಾರೆ. ಸದರಿ ಅಗ್ರಿಮೆಂಟ್ ನ ತಿದ್ದುಪಡಿ ಅಗಿತ್ತಾ ಎಂದರೆ
ಸಾಕ್ಷಿ ಜುಲೈ-2018 ರಲ್ಲಿ ತಿದ್ದುಪಡಿ ಅಗಿದೆ ಎನ್ನುತ್ತಾರೆ.
ನಿಪಿ.25 ಆ ತಿದ್ದುಪಡಿ ಅಗ್ರಿಮೆಂಟಿನ ದಾಖಲೆಯಾ ಎಂದರೆ ಸಾಕ್ಷಿ
ಹೌದು ಎನ್ನುತ್ತಾರೆ. ಸದರಿ ದಾಖಲೆ ಬಿಟ್ಟರೆ ಬೇರೆ ಯಾವುದಾದರೂ
ತಿದ್ದುಪಡಿ ದಾಖಲೆ ಆಗಿದೆಯಾ ಎಂದರೆ ಸಾಕ್ಷಿ ಸದರಿ ನಿಪಿ.25 ರ
ತಿದ್ದುಪಡಿ ಕರಾರಿನ ಜೊತೆಗೆ ರೆವಿನ್ಯೂ ಶೇರಿಂಗ್ ಆಧಾರದ ಮೇಲೆ
ಪೇಮೆಂಟ್ಷೆಡ್ಯೂಲ್ಡ ದಾಖಲೆ ಆಗಿತ್ತು ಎನ್ನುತ್ತಾರೆ.XXXX"
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17. Thus, it is clear that the accused are admitting
Ex.P24/34 and Ex.P25. In so far as claim of DW-1 that
along with Ex.P25, there was a payment schedule, is
concerned, the same will be discussed in due course.
18. Reverting to cross-examination of CW-1 dated
21.07.2022, where it is elicited that the complainant has
not produced payment schedule along with Ex.P24 and
25. However, CW-1 has volunteered that payment
schedule was sent to accused through e-mail and stated
that said e-mail and payment schedule will be produced
in due course.
19. It is elicited that complainant has not issued
show-cause notice to accused before issuing termination
notice at Ex.P28. It is elicited that three invoices were
raised by the complainant in July 2018, February 2019
and March 2019. It was suggested that as per schedule to
Amended User Fee Agreement, since invoices are raised
regarding sharing of revenue, the accused have not paid
the money as per the invoices. In reply, CW-1 has stated
that there is no revenue sharing agreement between the
complainant and the accused. CW-1 has admitted the
suggestion that from March 2019 to October 2019, the
complainant has not raised invoices. It is elicited that at
the time of execution of Ex.P24, the accused have given
three signed cheques for security. It is elicited that apart
from filing complaint in respect of subject cheque at
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Ex.P1, two other cheque-dishonored cases were filed
against the accused. CW-1 has volunteered that in all the
cases total liability is ₹5,72,19,500/-.
20. By giving suggestion to CW-1 that the accused
gave three cheques to the complainant for security at the
time of agreement, they have impliedly admitted issuance
of cheque(s) in favour of the complainant. In fact, during
cross-examination dated 16.01.2023, DW-1 has admitted
the same. Relevant portion of deposition of DW-1 dated
16.01.2023 is extracted as under:-
"XXXX ನಿಪಿ.1 ರ ಚಕ್ಕು ಅರೋಪಿ ಸಂಸ್ಥೆಯಿಂದ ಕೊಟ್ಟಿರುವ
ಚಕ್ಕು ಎಂದರೆ ಸರಿ. ನಿಪಿ.1 ರ ಮೇಲೆ ಇರುವ ಸಹಿ ನನ್ನದೇ. ಸದರಿ
ಸಹಿಯನ್ನು ಈಗಾಗಲೇ ನಿಪಿ.1(ಎ) ಎಂದು ಗುರುತಿಸಲಾಗಿದೆ.
ದಿ.29.06.2017 ರಲ್ಲಿ ನಮ್ಮ ಆರೋಗ್ಯ ಸಂಸ್ಥೆಯ ಮೂರು
ಖಾಲಿ ಚಕ್ಕುಗಳನ್ನು ಸಹಿ ಮಾಡಿ ಭದ್ರತೆಗಾಗಿ ಕೊಡಲಾಗಿತ್ತು
ಎನ್ನುತ್ತಾರೆ. ಆ ಚಕ್ಕುಗಳನ್ನು ಭದ್ರತೆಗಾಗಿ ಕೊಡಲಾಗಿತ್ತು
ಎನ್ನುವುದಕ್ಕೆ ದಾಖಲೆ ಹಾಜರು ಮಾಡಿದ್ದೀರಾ ಎಂದರೆ ಸಾಕ್ಷಿ
ಇಲ್ಲ, ಅದು ಕೇವಲ ಮೌಖಿಕವಾಗಿ ಒಪ್ಪಿಕೊಳ್ಳಲಾಗಿತ್ತು
ಎನ್ನುತ್ತಾರೆ.XXXX"
21. Indisputably, the complainant and the accused
have entered into User Fee Agreement dated 29.07.2017,
copies of which are at Ex.P24 and P34. Clauses (2), (4)
and (8) of the agreement are material and relevant to the
case on hand which are extracted as under:-
"2. Equipment.
2.1.1 Right/License to use the Equipment.
TBS hereby grants, subject to the terms and
conditions specified in this Agreement, to the
Customer a non-transferable right/license to
use the Equipment for the Term (defined in
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clause 8.1 below), unless otherwise
terminated prior to the expiry of the Term in
accordance with the provisions of this
Agreement. The Customer or Customer's
agent will have an opportunity to visually
inspect the Equipment and acknowledges
that the Equipment appears in good and
acceptable condition at the time of
installation.
2.1.2 The Customer shall take possession
of the Equipment on the Commencement
Date (defined below)
2.1.3 Title to Equipment. The Customer
acknowledges and confirms that TBS owns
all right, title and interest in the Equipment
and that the Customer has no right, title or
interest in the Equipment other than the
license to use the Equipment specifically
granted pursuant to this Agreement.
2.1.4 Without limiting the generality of the
foregoing, this Agreement gives the Customer
the right to use the Equipment during the
Term, and only if and so long as the
Customer does not breach the provisions of
this Agreement.
2.2 User Fee. The Customer acknowledges
and confirms that they will pay user fee
(as per clause 4) to TBS, for the use of
Equipment.
2.3 Customer Covenants. In relation to the
right/license to use of the Equipment, the
Customer acknowledges, confirms and
covenants the following:
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(i) During the Term of this Agreement,
Customer shall ensure that the Equipment
are not removed from, and are used only at,
the address of Customer as per the
Annexure A hereunder;
(ii) During the period of the Agreement or
after the period of the Term, the Customer
shall at no time contest or challenge TBS's
sole and exclusive right, title and interest in
the Equipment nor shall it contest and stall
the re-possession of the Equipment by TBS in
the event of any default or breach or
violation by the Customer of any of the
provision contained in the Agreement.
(iii) Upon the termination of this Agreement,
the Customer shall immediately return the
Equipment to TBS or permit its repossession
by TBS and shall extend any assistance that
TBS may require in respect of such
repossession of the Equipment from the
premises of Customer.
(iv) In order for Equipment to be functioning
correctly, the Customer understands that it is
required that utilities such as air
conditioning, ventilation, water, and other
services are functioning properly. TBS will
advise on the necessary infrastructure
required to the concerned authorities and
TBS shall not be responsible for coordinating
between the various services to ensure
proper functioning of Equipment. The
Customer shall provide and maintain proper
air-conditioned and dust-free space,
electrical points and stable power supply in
accordance with the specifications provided
by TBS in connection with the installation
19
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KABC0C0066082021
and maintenance of the Equipment at the
premises of Customer.
(v) Customer shall use only such accessories,
consumables, reagents, calibrators and
disposables on the Equipments as specified
or approved in writing by TBS from time to
time and shall ensure that only TBS
personnel will have the authority to repair,
upgrade or replace any parts necessary to
keep the Equipments in good working order.
(vi) Customer shall not remove any lables,
symbols or serial numbers that are or may
be affixed to any Equipment or part thereof,
except as may be directed or requested in
writing by TBS.
(vii) Customer shall not hypothecate,
transfer, part with possession of, sublet or
create any charge, lien or take any loan or
create any encumbrance, in any manner
whatsoever, on or in relation to the
Equipment or part with the possession of or
sublet the Equipment.
4. User Fee, Deposit & Payment Terms.
4.1 The Customer shall pay TBS for the User
fee in the manner indicated below:
(i) An Advance of Rs.1,75,00,000/-
(Rupees One Crore Seventy Five Lakhs
only) will be paid as non-interest bearing
deposit which is non-refundable;
(ii) Monthly Fee as per payment Scheme
(herewith enclosed) will be paid as user
fee ("User Fee") for a period of 72
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months with applicable Taxes/levies
through monthly ECS;
(iii) User Fee must be paid within 7 days
from the invoice date, soft copy of same will
be sent to the email id provided by customer
(iv) If User Fee is not paid within time,
the interest will be levied @ 18% pa until
the realization of User Fee or part
thereof;
(v) If the User Fee is not been paid for 2
consecutive months, TBS have the right
to terminate the Agreement, without any
prior notice and take back the all
Equipment and Deposit amount paid
will be accounted for losses/ damages
for breach of contract.
(vi) In the event of repossession/take back of
equipment on account of non payment of
fees, a one time movement charge of INR 10
Lacs will be charged to the customer and
same has to be paid immediately to TBS.
Any assistance, support, structural changes/
wall openings - shall be facilitated by
customer without any charges to TBS
towards restoration/repairs.
8. Term:Termination
8.1 Term. This Agreement is for a period of
six (6) years ("Term").
8.2 Termination without Cause. Both the
Parties shall not be entitled to terminate this
Agreement for the first three years ("Lock-in
Period"). Notwithstanding the Lock-in Period,
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TBS can terminate this Agreement in case of
any breach of the provisions of this
Agreement by the Customer. In the event if
customer terminates the contract before
completion of lock in period amount paid as
advance/ deposit will be forfeited as penalty
towards the damages for non-completion of
contract.
8.3 Termination for Cause. Without
prejudice to any other provision of this
Agreement, TBS may terminate this
Agreement with immediate effect in the
event that (i) the Customer fails to meet
any of its payment obligations under
this Agreement in accordance with the
terms of this Agreement or (ii) the
Customer is in breach of any material
term or condition of this Agreement.
8.4 Settlement of Accounts. Upon the
termination of this Agreement for any
reason whatsoever, TBS shall make and
prepare a final account in respect of its
relationship with the Customer under
this Agreement and shall submit such
account in duplicate to the Customer,
which amount shall be binding upon the
Customer except for any manifest error.
Any amount determined to be due and
payable under such account by any
Party to the other Party shall be paid
within 7 days from the date of
submission of such account to the
Customer."
(Emphasis supplied)
22. 'Amendment to User Fee Agreement' at Ex.P25
is reproduced as under:-
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"AMENDMENT TO USER FEE AGREEMENT
DATED 29TH JUNE 2017 BETWEEN
M/s.TBS INDIA TELEMATIC & BIOMEDICAL
SERVICES PVT LTD (First Part) and M/s
SUYOG HOSPITAL, A UNIT OF AROGYA
YOGA SAMSTHE (Second Part)
As cited above both parties hereby consent for
the following amendment to the agreement.
1. Clause 4.1.(i)
An advance amount of Rs.1,75,00,000/-
(Rupees Once Crore Seventy Five Lakhs only)
will be paid as non-interest bearing deposit
which is non-refundable
Amended as;
An advance amount of Rs.1,25,00,000/-
(Rupees Once Crore Twenty Five Lakhs
only) will be paid as non-interest bearing
deposit which is non-refundable
2. Clause 4.1.(ii)
Monthly Fee as per payment Schedule
(herewith enclosed) will be paid as user fee
("User Fee") for a period of 72 months with
applicable Taxes/Levies through monthly ECS
Amended as;
Monthly Fee(Rent) as per payment Schedule
(herewith enclosed) will be paid as user fee
("User Fee") for a period of 72 months with
applicable Taxes/Levies through monthly
ECS commencing from 01.06.2018
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KABC0C0066082021
All other clauses and terms of the
agreement remain unchanged.
For Arogya Yoga Samsthe
Sd/- Sd/-
Managing Partner/Partner Managing Partner/Partner
For TBS India Telematic & Biomedical Services
Pvt Ltd
Sd/-
Authorised Signatory"
23. Execution of Ex.P25 has been admitted by
DW-1 in his examination-in-chief. Relevant of portion of
deposition of DW-1 is extracted as under:-
"XXXX ದಿ.01.06.2018 ರಲ್ಲಿ ಇಬ್ಬರೂ ಒಪ್ಪಿ ಮೂಲ
ಯೂಸರ್ ಫೀ ಅಗ್ರಿಮೆಂಟ್ ಗೆ ತಿದ್ದುಪಡಿ ಒಂದನ್ನು
ಮಾಡಿಕೊಂಡಿದ್ದೇವೆ. ಮೊದಲನೇ ಯೂಸರ್ ಫೀ ಅಗ್ರಿಮೆಂಟ್
ಪ್ರಕಾರ ನಾವು 1 ಕೋಟಿ 75 ಲಕ್ಷ ಹಣವನ್ನು ದೂರುದಾರರಲ್ಲಿ
ಡೆಪಾಸಿಟ್ ಮಾಡಬೇಕಾಗಿತ್ತು. ದೂರುದಾರರು ಒಪ್ಪಿಕೊಂಡ
ಎಲ್ಲಾ ಯಂತ್ರಗಳನ್ನು ಕೊಡದೇ ಇರುವ ಕಾರಣ ಆ ಮೊತ್ತವನ್ನು
1 ಕೋಟಿ 25 ಲಕ್ಷಕ್ಕೆ ಕಡಿತಗೊಳಿಸಿ ತಿದ್ದುಪಡಿ
ಮಾಡಲಾಗಿತ್ತು.XXXX"
24. It is apparent from Ex.P24/P34 and Ex.P25
that accused No.2 and 3 are signatories to these
documents. Thus, it goes without saying that the
complainant has proved Ex.P24/P34 and Ex.P25. It is
pertinent to note that 'Monthly Schedule of Payments' is
24
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KABC0C0066082021
annexed to Ex.P-34, on which, admittedly, signatures of
accused No.2 and 3 are appearing.
25. Accused are claiming that there is a 'profit
sharing agreement' which according to DW-1, is with the
complainant. Relevant of portion of deposition of DW-1 in
his chief-examination dated 09.11.2022 is reproduced
here as under:-
"XXXX ತಿದ್ದುಪಡಿ ಅಗ್ರಿಮೆಂಟ್ ನ ಸಮಯದಲ್ಲಿ ನಮ್ಮಿಬ್ಬರ
ನಡುವೆ ಒಡಂಬಡಿಕೆ ಉಂಟಾಗಿ ಯಂತ್ರಗಳ ಉಪಯೋಗದಿಂದ ಬರುವ
ಆದಾಯದಲ್ಲಿ 60 ಪರ್ಸೆಂಟ್ ನಮ್ಮ ಸಂಸ್ಥೆಗೆ ಮತ್ತು ಉಳಿದ 40
ಪರ್ಸೆಂಟ್ ದೂರುದಾರರ ಸಂಸ್ಥೆಗೆ ಎಂದು ಒಪ್ಪಿಕೊಳ್ಳಲಾಗಿತ್ತು.
ತದನಂತರ ಆ ಒಪ್ಪಿಗೆ ಪತ್ರಕ್ಕೆ ನಾನು ಸಹಿ ಹಾಕಿ ದೂರುದಾರ
ಸಂಸ್ಥೆಯ ಮ್ಯಾನೇಜಿಂಗ್ ಡೈರೆಕ್ಟರ್ ಚೆಲುವೇದೊರೈ ರವರಿಗೆ
ಕೊಟ್ಟೆ. ಅವರು ಸಹಿ ಮಾಡಿ ನನಗೆ ಒಂದು ಪ್ರತಿಯನ್ನು
ಕೊಡಬೇಕಾಗಿತ್ತು ಆದರೆ ಅವರು ಕೊಡಲಿಲ್ಲಾ. ಆ ದಾಖಲೆ ಅವರ
ಬಳಿಯೇ ಉಳಿದಿದೆ. ತಿದ್ದುಪಡಿ ಅಗ್ರಿಮೆಂಟ್ ದಿ.01.06.2018
ರಿಂದ ಕಾರ್ಯಗತಕ್ಕೆ ಬರಬೇಕು ಎಂದು
ಒಪ್ಪಿಕೊಳ್ಳಲಾಗಿತ್ತು.XXXXX"
26. Accused are also claiming that there is a
'Monthly Schedule of Payments' appended to Ex.P25. But,
no such document is before the court. During cross-
examination dated 16.01.2023, when DW-1 was
questioned, if he has produced said 'Monthly Schedule of
Payments', he has replied that, it is with the complainant.
Relevant of portion of deposition of DW-1 is extracted as
under:-
"XXXX ಸಾಕ್ಷಿ ಸದರಿ ನಿ.ಪಿ.25 ರ ತಿದ್ದುಪಡಿ ಕರಾರಿನ ಜೊತೆಗೆ
ರೆವಿನ್ಯೂ ಶೇರಿಂಗ್ ಆಧಾರದ ಮೇಲೆ ಪೇಮೆಂಟ್ ಷಡ್ಯೂಲ್ಡ ದಾಖಲೆ
ಆಗಿತ್ತು ಎನುತ್ತಾರೆ. ಆ ಪೇಮೆಂಟ್ ಷಡ್ಯೂಲ್ಡ ದಾಖಲೆಯನ್ನು
ಹಾಜರು ಮಾಡಿದ್ದೀರಾ ಎಂದರೆ ಸಾಕ್ಷಿ ಆ ದಾಖಲೆ ದೂರುದಾರರ
25
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KABC0C0066082021
ಕಸ್ಟಡಿಯಲ್ಲಿ ಇದೆ ಎನ್ನುತ್ತಾರೆ. ಆ ಪೇಮೆಂಟ್ ಷೆಡ್ಯೂಲ್ಡ
ದಾಖಲೆಯನ್ನು ಹಾಜರು ಮಾಡಿದ್ದಿಃರಾ ಎಂದರೆ ಸಾಕ್ಷಿ ಆ ದಾಖಲೆ
ದೂರುದಾರರ ಕಸ್ಟಡಿಯಲ್ಲಿ ಇದೆ ಎನ್ನುತ್ತಾರೆ. ನಿಪಿ.24 ರ
ಯೂಸರ್ ಫೀ ಅಗ್ರಿಮೆಂಟಿನ ಜೊತೆಗೂ ಒಂದು ಪೇಮೆಂಟ್
ಪ್ಷೆಡ್ಯೂಲ್ಡ ದಾಖಲೆ ಆಗಿತ್ತಾ ಎಂದರೆ ಸಾಕ್ಷಿ ಇಲ್ಲ ಎನ್ನುತ್ತಾರೆ.
ನಿಪಿ.24 ರ ಜೊತೆಗೆ ಪೇಮೆಂಟ್ ಪ್ಷೆಡ್ಯೂಲ್ಡ ದಾಖಲೆಯಾಗಿತ್ತು,
ಆದರೆ ನೀವು ಹೇಳುವಂತೆ ತಿದ್ದುಪಡಿ ಕರಾರಿನ ಜೊತೆಗೆ ಪೇಮೆಂಟ್
ಪ್ಷೆಡ್ಯೂಲ್ಡ ಆಗಿರಲಿಲ್ಲಾ ಎಂದರೆ ಸಾಕ್ಷಿ ಸುಳ್ಳು
ಎನ್ನುತ್ತಾರೆ.XXXXX"
27. DW-1 is denying 'Monthly Schedule of
Payments' is part of Ex.P24/P34. However, he admits that
there is 'Monthly Schedule of Payments'. He claims that
'Monthly Schedule of Payments' was made at the time of
'Amendment to User Fee Agreement'. But, no such
document is produced before the court. Therefore,
conention of DW-1 that there is a 'Monthly Schedule of
Payments' appended to Ex.P25, is not proved.
28. Upon going through the recitals of Ex.P25, it is
apparent that the complainant and accused have
mutually agreed for amendment of Clause 4.1.(i) and
Clause 4.1.(ii) only, in so far as advance amount and the
period of commencement of payment of User Fee, is
concerned. Under Clause 4.1.(ii) of Ex.P24/P34, the
accused are liable to pay 'Monthly Fee' as per the enclosed
payment schedule as 'User Fee' to the complainant for a
period of 72 months with applicable taxes/levies through
monthly ECS. Under amended Clause 4.1.(ii), as agreed
under Ex.P25, except for the date of commencement, all
26
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KABC0C0066082021
other conditions regarding payment of 'Monthly fee'
remained unaltered and the accused are liable to pay
'Monthly Fee' as per the payment schedule enclosed to the
original agreement as 'User Fee' to the complainant for a
period of 72 months with applicable taxes/levies through
monthly ECS commencing from 01.06.2018.
29. 'Monthly Schedule of Payments' which forms
part of the agreement which is produced with Ex.P34 is
reproduced as under:-
Monthly Schedule of Payments
Mode Standing Bank Instructions
Priority First Charge on Revenues
A/C Primary Hosp A/c.(ICICI)
Monthly Monthly Total
amount payable
including GST
Year1 6 month-1 month 6 2,500,000 2,950,000
6 month-7 month 12 3,500,000 4,130,000
Year2 12 month month 24 4,087,500 4,823,250
13
Year3 12 month month 36 5,175,001 6,106,501
25
Year4,5, 36 month month 72 4,087,500 4,823,250
6 37
30. It is an undisputed fact that, upon failure of
the accused to honour the commitment under the User
Fee Agreement/Amended User Fee Agreement, the
complainant has issued notice of termination dated
27
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KABC0C0066082021
06.11.2019 terminating User Fee Agreement, copy of
which is produced at Ex.P28. Under the very notice, the
accused were called upon to clear the dues and they were
also informed of the complainant's intention to take back
the equipment. In Annexure-A to the said notice, the
complainant has made very clear that balance to be paid
by the accused up to October 2019 was ₹5,25,96,250/-.
Annexure-A of Ex.P28 is reproduced as under:-
"ANNEXURE-A
(FINAL STATEMENT OF ACCOUNTS
Sl. EMI EMI Amount EMI With Tax
No
1 Jun-18 25,00,000 29,50,000
2 Jul-18 25,00,000 29,50,000
3 Aug-18 25,00,000 29,50,000
4 Sep-18 25,00,000 29,50,000
5 Oct-18 25,00,000 29,50,000
6 Nov-18 25,00,000 29,50,000
7 Dec-18 35,00,000 41,30,000
8 Jan-19 35,00,000 41,30,000
9 Feb-19 35,00,000 41,30,000
10 Mar-19 35,00,000 41,30,000
11 Apr-19 35,00,000 41,30,000
12 May-19 35,00,000 41,30,000
13 Jun-19 40,87,500 48,23,250
14 Jul-19 40,87,500 48,23,250
15 Aug-19 40,87,500 48,23,250
16 Sep-19 40,87,500 48,23,250
17 Oct-19 40,87,500 48,23,250
TOTAL 5,64,37,500 6,65,96,250
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Paid on A/c -1,40,00,000
Balance to be Paid up to Oct-2019 5,25,96,250
THIS IS AN EMI DUE AMOUNT. IF ANY EQUIPMENTS
FOUND NON-FUNCITONAL DURING EVALUATION OF
THE EQUIPMENTS COST WILL BE CHARGED EXTRA."
31. It is not in dispute that the said notice served
on the accused and they have issued reply dated
14.11.2019, copy of which is produced at Ex.P29. In the
said reply, the accused have denied the liability and
furnished payments allegedly made by them to the
complainant as User Fee in Annexure-1 to the reply.
Annexure-1 of Ex.P29 is reproduced as under:-
"ANNEXURE-1
AROGYA YOGA SAMSTHE
Payments made to TBS India Telematic & Biomedical
Services Pvt Ltd as user fee
Date of Payment Rs.
06.02.2018 1000000
28.02.2018 1000000
17.04.2018 500000
12.07.2018 500000
23.08.2018 1500000
29.09.2018 1000000
15.10.2018 500000
22.11.2018 1000000
23.11.2018 1000000
28.11.2018 1000000
04.12.2018 500000
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15.12.2018 200000
19.12.2018 100000
24.12.2018 1000000
27.12.2018 1000000
31.12.2018 700000
28.01.2019 1000000
08.03.2019 500000
Total 14000000
32. During cross-examination dated 16.01.2023,
DW-1 has claimed that after Ex.P25, the accused have
paid a sum of ₹1,42,00,000/- to the complainant apart
from payment of non-refundable deposit of
₹1,25,00,000/-. When he was questioned, if the accused
can produce documents for having paid a sum of
₹2,67,00,000/- to the complainant, he has replied that he
would produce the document. But, no such documents
produced before the court. Relevant portion of deposition
of DW-1 dated 16.01.2023 is extracted as under:-
"XXXX 2018 ರಲ್ಲಿ ತಿದ್ದುಪಡಿ ಪತ್ರ ಆದ ನಂತರ ಒಟ್ಟು
ಎಷ್ಟು ಹಣವನ್ನು ದೂರುದಾರ ಸಂಸ್ಥೆಗೆ ನೀವು ಪಾವತಿ ಮಾಡಿದ್ದೀರಿ
ಎಂದರೆ ಸಾಕ್ಷಿ ಒಟ್ಟು 1 ಕೋಟಿ 42 ಲಕ್ಷ ರೂ ಗಳನ್ನು ಪಾವತಿ
ಮಾಡಿದ್ದೇವೆ ಎನ್ನುತ್ತಾರೆ. ಅಗ್ರಿಮೆಂಟ್ ನ ಅಡಿ 1 ಕೋಟಿ 25 ಲಕ್ಷ
ನಾನ್ ರೀಫಂಡಬಲ್ ಡೆಪಾಸಿಟ್ ಆಗಿ ನೀವು ದೂರುದಾರ ಸಂಸ್ಥೆಗೆ
ಕೊಡಬೇಕಾಗಿತ್ತು ಎಂದರೆ ಸಾಕ್ಷಿ ಅದನ್ನು ಮೊದಲೇ ಕೊಟ್ಟಿದ್ದು, ಆ
ನಂತರ 1 ಕೋಟಿ 42 ಲಕ್ಷ ಕೊಟ್ಟಿದ್ದೇವೆ ಎನ್ನುತ್ತಾರೆ. ಹಾಗೆ ನೀವು
2 ಕೋಟಿ 67 ಲಕ್ಷ ಹಣ ಕೊಟ್ಟಿರುವುದಕ್ಕೆ ದಾಖಲೆ ಕೊಡಲು
ಆಗುತ್ತದಾ ಎಂದರೆ ಸಾಕ್ಷಿ ಹೌದು ಎನ್ನುತ್ತಾರೆ.XXXXX"
33. When it was suggested to DW-1 that as per the
agreement, the accused are liable to pay ₹25,00,000/- to
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₹30,00,000/- to the complainant for use of equipments,
he has denied the same and disowned the liability. He has
also denied the suggestion that since the accused have
failed to pay User Fee till November 2019, the
complainant has terminated the agreement by issuing
notice. When he was questioned, what was the minimum
of User Fee payable by the accused to the complainant,
DW-1 has stated that the accused are liable to pay
₹5,00,000/- only. When he was questioned, is there any
recital to that effect in any of the documents, DW-1 has
replied that it is recorded in '60:40 revenue sharing
agreement'. Relevant portion of deposition of DW-1 is
extracted as under:-
"XXXXX ಅಗ್ರಿಮೆಂಟ್ ಪ್ರಕಾರ ಎಕ್ಯೂಪ್ಮೆಂಟ್ಗಳ
ಉಪಯೆಾೕಗಕ್ಕೆ ಪ್ರತಿ ತಿಂಗಳು ನೀವು ದೂರುದಾರರಿಗೆ 25 ರಿಂದ 30
ಲಕ್ಷ ಹಣ ಕೊಡಬೇಕಾಗಿತ್ತು ಎಂದರೆ ಸಾಕ್ಷಿಯು ಸುಳ್ಳು ಎನ್ನುತ್ತಾರೆ.
ನವಂಬರ್-2019 ರ ವರೆಗೂ ನೀವು ಯೂಸರ್ ಫೀ ಯನ್ನ
ನಿಗದಿತವಾಗಿ ಕೊಡದೇ ಇದ್ದ ಕಾರಣ ನಿಮ್ಮ ಜೊತೆಗಿನ ಅಗ್ರಿಮೆಂಟ್
ನ್ನು ಟರ್ಮಿನೇಟ್ ಮಾಡಬೇಕಾಗಿ ಬಂತು ಎಂದರೆ ಸಾಕ್ಷಿ ಸರಿಯಲ್ಲ
ಎನ್ನುತ್ತಾರೆ. ನೀವು ದೂರುದಾರ ಸಂಸ್ಥೆಗೆ ಪ್ರತಿ ತಿಂಗಳ ಮಿನಿಮಮ್
ಯಾಸರ್ ಫೀ ಎಷ್ಟು ಕೊಡಬೇಕಾಗಿತ್ತು ಎಂದರೆ ಸಾಕ್ಷಿ 5 ಲಕ್ಷ
ಕೊಡಬೇಕಾಗಿತ್ತು ಎನ್ನುತ್ತಾರೆ. ಹಾಗೆ 5 ಲಕ್ಷ ಕೊಡಬೇಕು
ಎನ್ನುವುದು ಎಲ್ಲಾದರೂ ನಮೂದು ಆಗಿದೆಯಾ ಎಂದರೆ ಸಾಕ್ಷಿ
60ಃ40 ರೆವಿನ್ಯೂ ಶೇರಿಂಗ್ ಅಗ್ರಿಮೆಂಟ್ ನ ಅಡಿಯೇ ಅದು ಕೂಡಾ
ದಾಖಲಾಗಿದೆ ಎನ್ನುತ್ತಾರೆ. XXXX"
34. It is further elicited in the cross-examination of
DW-1 that even after termination of User Fee agreement
as agreed between the parties, they have not returned the
equipments to the complainant. However, he admits that
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as per the terms of the agreement, after the completion of
tenure of the agreement or after termination of agreement,
the accused are liable to return the equipments to the
complainant. Relevant portion of deposition of DW-1 in
this regard is extracted as under:-
"XXXXX ಅಗ್ರಿಮೆಂಟಿನ ಕಾಲಾವಧಿ ಮುಗಿದ ನಂತರ ಅಥವಾ
ಅಗ್ರಿಮೆಂಟ್ ಟರ್ಮಿನೇಟ್ ಆದ ನಂತರ ಎಲ್ಲಾ ಎಕ್ಯೂಪ್ಮೆಂಟ್
ಗಳನ್ನು ದೂರುದಾರ ಸಂಸ್ಥಗೆ ವಾಪಸ್ಕೊಡಬೇಕಾಗಿತ್ತು ಎಂದರೆ ಸಾಕ್ಷಿ
ಹೌದು ಎನ್ನುತ್ತಾರೆ. ದಿ.06.11.2019 ಕ್ಕೆ ಅಗ್ರಿಮೆಂಟ್ ನ್ನು
ಟರ್ಮಿನೇಟ್ ಮಾಡಿ ಎಲ್ಲಾ ಎಕ್ಯೂಪ್ಮೆಂಟ್ ಗಳನ್ನು ಹಿಂತಿರುಗಿಸಿ
ಎಂದು ದೂರುದಾರ ಸಂಸ್ಥೆ ನಿಮ್ಮನ್ನು ಕೇಳಿದ್ದಾರೆ ಎಂದರೆ ಸಾಕ್ಷಿ
ಹೌದು ಎನ್ನುತ್ತಾರೆ. ನೀವು ಎಕ್ಯೂಪ್ ಮೆಂಟ್ ಗಳನ್ನು
ಹಿಂತಿರುಗಿಸಿದ್ದೀರಾ ಎಂದರೆ ಸಾಕ್ಷಿ ಅಗ್ರಿಮೆಂಟ್ ನ್ನು
ಕಾನೂನುಬಾಹಿರವಾಗಿ ಟರ್ಮಿನೇಟ್ ಮಾಡಿದ ಕಾರಣ ಮತ್ತು ಕೆಲವು
ಎಕ್ಯೂಪ್ಮೆಂಟ್
ಗಳನ್ನು ಈ ಅಗ್ರಿಮೆಂಟ್ ನ ಅಡಿ ಕೊಟ್ಟಿರದೇ ಇದ್ದ
ಕಾರಣಕ್ಕಾಗಿ ಎಕ್ಯೂಪ್ಮೆಂಟ್ ಗಳನ್ನು ವಾಪಸ್ ಕೊಟ್ಟಿಲ್ಲ
ಎನ್ನುತ್ತಾರೆ.XXXX"
35. In order to disprove the case of the
complainant, the accused have heavily relied on letter
dated 17.12.2019 addressed by the complainant which is
marked at Ex.D4. This documents was marked in the
cross-examination of CW-1. Relevant portion of deposition
of CW-1 dated 01.10.2022 is extracted as under:-
"1. ನೀವು ನಿಮ್ಮ ಆಡಿಟರ್ ರವರು ಸೂಚಿಸಿರುವ
ದಿ.30.11.2019 ರಂದು ಬಾಕಿ ಹಣ 77,20,000/-ರೂ.
ಹಣದ ಕನ್ಪರ್ಮೇಷನ್ ಗಾಗಿ ದಿ.17.12.2019 ರಂದು
ಆರೋಪಿಗೆ ಪತ್ರ ಒಂದನ್ನು ಬರೆದಿದ್ದೀರಿ ಎಂದರೆ ಸಾಕ್ಷಿ ಹೌದು
ಎಂದು ಹೇಳುತ್ತಾರೆ. ಸದರಿ ಪತ್ರವನ್ನು ಸಾಕ್ಷಿಯು ಒಪ್ಪಿಕೊಂಡ
ಕಾರಣ ನಿಡಿ.4 ಎಂದು ಗುರುತಿಸಲಾಯಿತು.XXXXX"
36. During the course of argument, learned
counsel for the complainant has submitted that the
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amount shown in Ex.D4 is only 'due amount', not billed
amount. In this regard, he has pointed out of the evidence
of CW-1 dated 03.08.2022 which is reproduced as under:-
"XXXXX ನಿಮ್ಮ ಟಿ.ಬಿ.ಎಸ್. ಕಂಪನಿಗೆ ಎಸ್.ಆರ್. ಬಾಟ್ಲಿ
ಬೋಯ್ ಆ್ಯಂಡ್ ಅಸೋಸಿಯೇಟ್ಸ ಎಲ್ ಎಲ್ ಪಿ ರವರು
ಆಡಿಟರ್ ಆಗಿದ್ದಾರೆ ಎಂದರೆ ಸಾಕ್ಷಿ ಅವರು ಗ್ರೂಪ್ರಿಪೋರ್ಟಿಂಗ್
ಆಡಿಟರ್ ಆಗಿದ್ದಾರೆ ಎನ್ನುತ್ತಾರೆ. ಅವರ ಪತ್ರ
ದಿ.17.12.2019 ರಲ್ಲಿ ಆರೋಪಿಯಿಂದ ದಿ.30.11.2019
ರವರೆಗೆ 72,20,000-00 ಹಣ ಬಾಕಿ ಬರಬೇಕು ಎಂದು
ಹೇಳಿದ್ದಾರೆ ಎಂದರೆ ಸಾಕ್ಷಿ ಹೌದು ಎನ್ನುತ್ತಾರೆ. ಮುಂದುವರೆದು ಆ
ದಿನಾಂಕಕ್ಕೆ ಅದು Billed ಮೊತ್ತ ಆಗಿದೆ ಎನ್ನುತ್ತಾರೆ. ಸದರಿ
ಪತ್ರವನ್ನು ನಿಮ್ಮ ರಿಪೋರ್ಟಿಂಗ್ ಅಡಿಟರ್ ನೀವು ಆರೋಪಿಯ
ಸಂಸ್ಥೆ ಜೊತೆ ವ್ಯವಹಾರ ಸ್ಥಗಿತಗೊಂಡ ನಂತರ ನೀಡಿರುವ ಪತ್ರ
ಅಗಿದೆ ಎಂದರೆಸರಿ. ಆ ಪತ್ರದಲ್ಲಿ ಹೇಳಿರುವಂತೆ ನಿಮ್ಮ ಪ್ರಕಾರ ದಿ.
30.11.2019 ಕ್ಕೆ ರೂ. 72,20,000-00 ಮೊತ್ತ ಮಾತ್ರ
ಬಾಕಿ ಇತ್ತು ಎಂದರೆ ಸಾಕ್ಷಿ ಅದು Billed ಮೊತ್ತ ಮಾತ್ರ
ಆಗಿದ್ದು, Un Billed ಮೊತ್ತ ಬೇರೆ ಇದೆ ಎನ್ನುತ್ತಾರೆ.
XXXX"
37. Relying on Ex.D4, learned defence counsel
appearing for accused No.3 and accused No.2 in-person
argued that the complainant has though admitted in
Ex.D4 that as on 30.11.2019 amount receivable from the
accused was ₹77,20,000/-, they have inflated their claim
to ₹5,25,96,250/- in their termination notice which has
no basis at all. They have submitted that the very
document of the complainant at Ex.D4 disproves their
claim for ₹5,72,19,500/-.
38. Ex.P22 is the e-mail correspondence between
the representative of the complainant and the accused
No.2. It is pertinent to note that in e-mail dated
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14.07.2018 and 16.07.2018 (Ink page No.59 and 60 of
Ex.P22), accused No.2 has admitted the liability and
assured that the remaining payments will be done from
July 2018 onwards. E-mails dated 14.07.2018 and
16.07.2018 are extracted here under:-
"On Sat, Jul 14, 2018 at 10:25 AM, s p
yoganna <[email protected]> wrote:
I have promised payment in the month
of July 2018 with in this month I will clear
25 lacks and I have already paid 5 lacks. It
is not possible to clear the dues on a
particular day of a month since our complete
operation has started from last one month
and it takes some time to generate the
revenue from the hospital and the
equipment's. Please understand without
generation of the money from the hospital it
is very difficult to pump the huge amount at
one stretch. the bank facility is also expected
at any moment. u have instructed the
dialysis equipment people not to install the
machine which is further going to damage
the reputation and revenue of the hospital.
we have given appointment for patients from
Monday to start the dialysis. at any cost I
cant send the patient back please instruct
them to install immediately before Sunday I
tried to cal u on phone please call me"
"On 16-Jul-2018, at 6:35, s p yoganna
<[email protected]> wrote:
Dear Sir,
The dialysis patients (5 nos) have been
registered to start dialysis from 18-07-2018.
All other infrastructure is ready and Mr
Anoop wants your permission to install the
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machine. Further delay in the installation of
the machine, will cause difficulty to the
patients as they have already disconnected
from the earlier center. Please intimate the
fresinius people to install the machine
tomorrow. The remaining payments will be
done from this month.
Thanking you,
yours faithfully
Dr S P Yoganna"
39. Accused have relied on certified copies of
statements showing revenue generation and sharing of
revenue which are marked at Ex.D15 to 20, allegedly
signed by one Ronald Steven, who was working as
Biomedical Engineering in complainant company, to
contend that there is a revenue sharing agreement
between the complainant and the accused. In this regard,
DW-1 was cross-examined at length. Relevant portions of
his cross-examination dated 21.07.2023 is extracted as
under:-
"XXXX ನಿಡಿ.15 ರಿಂದ 20 ರವರೆಗಿನ ದಖಲೆಗಳನ್ನು
ಯಾವ ಆಧಾರದಲ್ಲಿ ತಯಾರಿಸಲಾಗಿದೆ ಎಂದರೆ ಸಾಕ್ಷಿ
Ronald Steavan ರವರು ದೂರುದಾರ ಕಂಪನಿಯ
ಬಯೋ ಮೆಡಿಕಲ್ ಇಂಜಿನಿಯರ್ ಆಗಿ ಕೆಲಸ ಮಾಡುತ್ತಿದ್ದರು.
ಅವರು ಸದರಿ ದಾಖಲೆಯನ್ನು ತಯಾರಿಸಿ ನನ್ನ ಅನುಮೋದನೆ
ಪಡೆದುಕೊಂಡಿರುತ್ತಾರೆ. XXXXX"
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"XXXXX ಸದರಿ ದಾಖಲೆಗಳಲ್ಲಿ ನಮೂದಿಸಿರುವ
ರೆವಿನ್ಯೂ ಮಾಹಿತಿಯನ್ನು ಯಾುವ ಅಧಾರದಲ್ಲಿ ಮಡಲಾಗಿದೆ
ಎಂದರೆ ಸಾಕ್ಷಿ Ronald Steavan ಅವರೇ ಎಕ್ವಿಪ್ಮೆಂಟ್
ಗಳನ್ನು ನೋಡಿಕೊಳ್ಳುತ್ತಿದ್ದು, ಎಷ್ಟು ರೆವಿನ್ಯೂ ಜನರೇಷನ್
ಆಗುತ್ತಿದೆ ಎಂದು ಅಕೌಂಟ್ಸನ್ನು ಅವರೇ ನೋಡಿಕೊಳ್ಳುತ್ತಿದ್ದರು.
ಅದರ ಆಧಾರದಲ್ಲಿ ಅವರು ಸದರಿ ನಿಡಿ.15 ರಿಂದ 20 ರ
ದಾಖಲೆಗಳನ್ನು ತಯಾರಿಸಿಕೊಟ್ಟಿದ್ದಾರೆ ಎನ್ನುತ್ತಾರೆ.XXXX"
"XXXX Ronald Steavan ಮಾರ್ಚ-2018
ರಿಂದ ಆಗಸ್ಟ-2021 ರವರೆಗೆ ದೂರುದಾರ ಸಂಸ್ಥೆಯಲ್ಲಿ ಕೆಲಸ
ಮಾಡಿದ್ದಾರೆ. ನಿಮ್ಮ ಆಸ್ಪತ್ರೆಯಲ್ಲೇ ಅವರು ಟಿ.ಬಿ.ಎಸ್.
ಸಂಸ್ಥೆಯ ಪರವಾಗಿ ಕೆಲಸ ಮಾಡುತಿದ್ದರಾ ಎಂದರೆ ಸಾಕ್ಷಿ ಹೌದು
ಎನ್ನುತ್ತಾರೆ. ಮಾರ್ಚ-2018 ರಿಂದ ಆಗಸ್ಟ-2021 ರವರೆಗೂ
ಅವರು ನಮ್ಮ ಆಸ್ಪತ್ರೆಯಲ್ಲಿ ದೂರುದಾರರ ಸಂಸ್ಥೆಯ ಪರವಾಗಿ
ಕೆಲಸ ಮಾಡುತ್ತಿದ್ದರು. XXXX"
"XXXX Ronald Steavan ರವರು ಸದರಿ
ನಿಡಿ.15 ರಿಂದ 20 ರ ದಾಖಲೆಗಳನ್ನು ನಮ್ಮ ಆಸ್ಪತ್ರೆಯಲ್ಲೇ
ತಯಾರಿಸಿಕೊಟ್ಟಿದ್ದಾರೆ. Ronald Steavan ರವರು ನಿಮ್ಮ
ಮುಂಂದೆ ಸಹಿ ಮಾಡಿದರಾ ಎಂದರೆ ಸಾಕ್ಷಿ ಇಲ್ಲ ಎನ್ನುತ್ತಾರೆ.
Ronald Steavan ರವರು ಸದರಿ ಸ್ಟೇಟ್ಮಂಟ್ ಗಳನ್ನು
ಜನರೇಟ್ ಮಾಡಲು ಅಧಿಕಾರ ಇರುವ ಬಗ್ಗೆ ನಿಮಗೆ
ದೂರುದಾರ ಸಂಸ್ಥೆಯ ಯಾವುದಾದರೂ ಅಧಿಕಾರ ಪತ್ರ
ತೋರಿಸಿದ್ದಾರಾ ಎಂದರೆ ಸಾಕ್ಷಿ ಅಧಿಕಾರ ಪತ್ರ ತೋರಿಸಿಲ್ಲಾ,
ಆದರೆ ಮೌಖಿಕವಾಗಿ ದೂರುದಾರ ಸಂಸ್ಥೆಯ ಸಿ.ಇ.ಓ.
ಚಲುವದೊರೈ ರವರು ರೆವಿನ್ಯೂ ಜನರೇಷನ್ ಬಗ್ಗೆ
ಜವಾಬ್ದಾರಿಯನ್ನು Ronald Steavan ರವರಿಗೆ
ಕೊಟ್ಟಿದ್ದೇವೆ ಎಂದು ಮೌಖಿಕವಾಗಿ ಹೇಳಿದ್ದರು ಎನ್ನುತ್ತಾರೆ.
XXXX"
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KABC0C0066082021
"XXXX Ronald Steavan ರವರ ರೆವಿನ್ಯೂ
ಜನರೇಷನ್ ಸಂಬಂಧ ಆಥರೈಸೇಷನ್ ಬಗ್ಗೆ ಚಲುವದೊರೈ
ರವರೊಂದಿಗೆ ಏನಾದರೂ ಲಿಖಿತವಾಗಿ ಚರ್ಚಿಸಿದ್ದೀರಾ ಎಂದರೆ
ಸಾಕ್ಷಿ ವರ್ಷಗಳೇ ಆದರೂ ಅವರು ಯಾವುದೇ ತಕರಾರು
ಮಾಡದೇ ಇದ್ದ ಕಾರಣ ಆ ಬಗ್ಗೆ ನಾನು ಏನನ್ನೂ ಚಲುವದೊರೈ
ರೊಂದಿಗೆ ಲಿಖಿತವಾಗಿ ಚರ್ಚಿಸಿಲ್ಲ ಎನ್ನುತ್ತಾರೆ. ಸದರಿ
ವರದಿಗಳನ್ನು ದೂರುದಾರ ಸಂಸ್ಥೆಯ ಜೊತೆ ಶೇರ್
ಮಾಡಿದ್ದೀರಾ ಎಂದರೆ ಸಾಕ್ಷಿ Ronald Steavan ರವರು
ಮಾಡಿದ್ದಾರೆ ಎನ್ನುತ್ತಾರೆ.XXXX"
"XXXXX Ronald Steavan ರವರು ಈಗ
ಎಲ್ಲಿ ಕೆಲಸ ಮಾಡುತ್ತಿದ್ದಾರೆ ಎಂದರೆ ಸಾಕ್ಷಿ ನಮ್ಮ
ಆಸ್ಪತ್ರೆಯಲ್ಲೇ ಕೆಲಸ ಮಾಡುತ್ತಿದ್ದಾರೆ ಎನ್ನುತ್ತಾರೆ. ನಿಮ್ಮ ಕೈ
ಕೆಳಗೆ ಈಗ ಅವರು ಕೆಲಸ ಮಾಡುತ್ತಿದ್ದಾರೆ ಎಂದರೆ ಸಾಕ್ಷಿ ನಮ್ಮ
ಆಸ್ಪತ್ರೆಯಲ್ಲಿ ಕೆಲಸ ಮಾಡುತ್ತಿದ್ದಾರೆ ಎನ್ನುತ್ತಾರೆ. 2022 ನೇ
ಇಸವಿಯಿಂದ ನಮ್ಮ ಆಸ್ಪತ್ರೆಯಲ್ಲಿ ಅವರು ಕೆಲಸ
ಮಾಡುತ್ತಿದ್ದಾರೆ.XXXX"
40. Above elicitations extracted in the cross-
examination of DW-1 clearly indicate that, the so-called
revenue generation and sharing of revenue between the
complainant and the accused has absolutely no basis at
all, as said Ronald Steven has no authority to prepare the
said documents on behalf of the complainant, more so in
the light of the fact that there is no agreement to that
effect under Ex.P24/P34 and Ex.P25. The accused have
not produced any document to prove their claim that
there is an agreement between them and the accused with
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regard to sharing of revenue. Therefore, this court holds
that the accused have failed to prove the contention that
there was revenue sharing agreement between them and
the complainant in respect of equipments supplied to
them by the complainant.
41. It is necessary to point out that the accused
have filed an application under Section 243 of Cr.P.C.,
dated 04.08.2023, to summon said Ronald Steven to
examine him as a witness. This court allowed the said
application on 10.08.2023. But, for the reasons best
known to the accused, he has not been procured before
the court although DW-1 is very much working under
them. This clearly indicates that the accused are trying to
suppress something before the court in order to justify
their claim that there is agreement for sharing of profit out
of the revenue generated from the equipments supplied by
the complainant. On the face of Ex.D15 to 20, it appears
that those documents were prepared in 2018-19.
Admittedly, during the said period, Ronald Steven was
working under accused. Therefore, chances of creation of
those documents by the accused with the help of Ronald
Steven cannot be ruled out.
42. It is pertinent to note that the accused have
produced Ex.D15 to 20 in A.C.No.176/2021 which were
marked at Ex.R13 to 24 in the said proceeding. While
answering issue No.3, learned Arbitrator observed that,
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since Ronald Steven is working as a bio-medical engineer
in the hospital run by the accused, chances of trying the
accused in preparing Ex.D15 to 20 cannot be ruled out.
After having considered the evidence on record, this court
holds that Ex.D15 to 20 have not been proved. This leads
to the conclusion that the accused have failed to prove
their contention that there is profit sharing agreement
between them and the complainant.
43. Yet another defence of the accused is that in
arbitration proceedings, viz., A.C.No.176/2021 before the
Arbitral Tribunal at Bengaluru, the complainant has
initiated proceedings for recovery of money which includes
the claim involved in the case on hand. In this regard,
much emphasis was laid by the accused during the
course of cross-examination of CW-1 as well as during the
course of argument. It was also contended that in the said
proceedings, the accused have made counter claim for
₹1,04,14,138/- against the complainant herein. It is also
contented that, before the initiation of the said
proceedings, the complainant has filed A.A.No.86/2021
before City Civil Court at Bengaluru and Arbitration
Application No.24/2020 before the Commercial Court.
Initiation of these proceedings by the complainant has
been admitted by CW-1 during the course of his cross-
examination. During the course of argument, it was
strenuously argued by accused No.2 that the learned
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Arbitrator has passed award dated 07.12.2023 holding
that the complainant is entitled to recover a sum of
₹2,85,05,282/- only with interest @ 18% p.a. as against
its claim of ₹21,38,49,980/-. Accused have produced
certified copy of award at Ex.D22. It was also argued that
the learned Arbitrator has observed that there is no
mention/writing in User Fee Agreement that 'Monthly
Payment Schedule' attached to the said agreement.
Therefore, learned Arbitrator has recorded a finding that
the theory of the complainant herein that 'Monthly
Payment Schedule' was prepared on the very day of
executing the agreement is falsified from the contents of
'Monthly Payment Schedule'. It was also observed that the
sheet containing the calculation of monthly payments to
be made is only a calculation sheet and does not bear the
signatures. Therefore, it was argued that the monthly
payment schedule attached Ex.P24/P34 cannot be
believed. It was further argued on behalf of accused that
award at Ex.D22 has been challenged by the complainant
as well as the accused before Commercial Court in
Com.A.P.No.33/2024 and Com.A.P.No.53/2024. It was
submitted that in the said proceedings, Hon'ble
Commercial Court by common judgment dated
01.10.2024, allowed Com.A.P.No.33/2024 filed by the
complainant herein, while Com.A.P.No.53/2024 filed by
the accused was dismissed.
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44. Learned counsel for the complainant has
produced certified copy of judgment passed in
Com.A.P.No.33/2024 and Com.A.P.No.53/2024 and
submitted that in A.C.No.176/2024, User Fee Agreement
dated 29.06.2017 was marked as Ex.P2 and monthly
payment schedule attached to the User Fee Agreement is
marked as Ex.P2(a). It was argued that the observation of
the learned sole Arbitrator that the complainant herein
has not proved Ex.P2(a) has been set aside by the Hon'ble
Commercial Court. While drawing attention of this court
para No.25 to 28 of the judgment, it was argued that
Hon'ble Commercial Court held that conclusion arrived by
the learned Arbitrator is as a result of wrongful
interpretation of Ex.P2(a) and thus, it vitiates the entire
award. Para No.25 to 28 of common judgment passed in
Com.A.P.No.33/2024 and Com.A.P.No.53/2024 is
reproduced hereunder:-
"25. The Learned Arbitrator by observing
that the claimant has not proved Ex.P.2(a)
has awarded a sum of Rs.2,85,05 282/- as
user fee recoverable from the respondent
based on preponderance of probabilities.
This conclusion arrived by the Learned
Arbitrator is on account of wrongful
interpretation of Ex.P.2(a) which vitiates the
entire award. The Learned Arbitrator has
derived the final amount basing upon the
deposition of R.W.1 at para 14 of the
affidavit evidence where the respondent
says that the revenue generated from the
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equipment in question from November 2019
to August 2021 is Rs.4,16,14,655/-. To
substantiate the said statement the
respondent has relied upon documents at
Ex.R.13 to R.27.
26. Sec.34 of Act makes it amply clear that
in order to ascertain whether there is patent
illegality appearing on the face of it there
cannot be a re-appreciation of evidence. The
Learned Arbitrator at para 79 of the award
categorically observes that Ex.R.13 to R.27
are nothing but self serving statements not
substantiated in any manner and therefore
it cannot be acted upon. In spite of recording
such finding the Learned Arbitrator has
relied upon the same documents concluding
that it amounts to the revenue generated
from November 2019 to August 2021 and
awards the amount as user fee payable to
the claimant.
27. The Learned Arbitrator for the purpose of
passing the award and awarding the
amount payable tot he claimant has adopted
the ratio of 60:40. It is pertinent to mention
here that user fee payable by the
respondent is as per the monthly payment
schedule at Ex.P.2(a). The Learned
Arbitrator after observing that claimant has
not proved Ex.P.2(a) also has rejected the
contention of the respondent that the
revenue sharing basis is in the ratio of 60:40
that is the respondent to receive 60% of the
revenue generated and the claimant to
receive 40%. No where the user fee
agreement stipulates such basis for sharing
the revenues. On the other hand in the
absence of any pleadings by either of the
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parties and also there being no evidence by
either of the parties the Learned Arbitrator
has adopted the said basis for determining
the user fee which is beyond the scope of
section 28(3) of the act and thereby it is in
conflict with public policy of India.
28. Yet another argument that was put forth
by the Learned Senior Counsel is that the
Learned Arbitrator has completely ignored
the settlement arrived between the parties
and accepted by the Hon'ble High Court in
Commercial A.P.52/2021. Prior to
commencement of the arbitration
proceedings the claimant had filed an
arbitration application under sec.9 of the act
seeking various interim reliefs. The said
application came to be allowed in part which
came to be challenged before the Hon'ble
High Court in Commercial A.P. No.52/2021.
Before the Hon'ble High Court settlement
came to be arrive between the claimant and
the respondent wherein the respondent
agreed to return the equipment as
mentioned in the schedule I of the terms of
the settlement dated 18.09.2021 produced
at Ex.P.45 and in return he was to purchase
the equipment described at schedule II. The
respondent did neither of these which
required the claimant to file the execution of
the memorandum of settlement and in the
execution proceedings the respondent
returned some of the equipment mentioned
in the schedule I of Ex.P.45 and also
purchased the MRI equipment. The Learned
Arbitrator has failed to consider the fact that
as per the memorandum of settlement upon
failure of the respondent to purchase the
equipment under schedule II it will result in
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respondent losing the right to purchase the
same and the claimant may continue to hold
ownership of the said equipment. Admittedly
the respondent has not purchased the
equipment as agreed under the
memorandum of settlement and therefore
finding recorded by the Learned Arbitrator
that the respondent has become owner of
the equipment is erroneous and contrary to
the terms of settlement which has been
accepted by the Hon'ble High Court. The
Learned Senior Counsel for the petitioner
has successfully demonstrated that the
impugned award passed by the Learned
Arbitrator is in breach of public policy of
India and there exists a patent illegality
appearing on the face of the award which
necessitates the award to be set aside.
Accordingly for the aforesaid reasons, I
answer Point No.2 in the Affirmative."
45. Thus, finding recorded by the learned
Arbitrator that monthly payment schedule is not a part of
User Fee Agreement has been set aside by Hon'ble
Commercial Court. Therefore, the accused cannot rely on
Ex.D22 to disown their liability under monthly payment
schedule which is mutually agreed between the parties at
the time of Ex.P24/P34.
46. Next argument advanced on behalf of the
accused is that by issuing notice at Ex.P28, the
complainant has unilaterally terminated the User Fee
Agreement. It was argued that, subsequent to the
termination of the agreement, the complainant addressed
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a letter at Ex.D4 dated 17.12.2019 making a claim for
₹77,20,000/-. Therefore, it was argued that there is no
basis for the complainant to claim a sum of
₹5,25,19,250/- from the complainant as alleged balance
upto October 2019, under notice of termination at Ex.P28.
47. It was further argued by the learned senior
counsel for the accused that monitory liability has not
been determined or fixed under the agreement. Since,
liability of the accused was not determined as on the date
of termination notice at Ex.P28, the said notice is 'non est'
in the eye of law. It was also argued that CW-1 has
admitted that the complainant has not raised invoices as
per Clause 4.1(iii) of User Fee Agreement. Therefore, the
very liability determined under Ex.P28 is arbitrary and
thus, the complainant has failed to prove the existence of
legally enforceable/recoverable debt by the accused.
48. On the other hand, learned counsel for the
complainant submitted that the money claimed under
Ex.D4 is only a billed amount. Unbilled amount has been
arrived at as per monthly payment schedule which was
mutually agreed between the complainant and the
accused. Therefore, he has submitted that the accused
cannot rely on Ex.D4.
49. Nextly it was argued on behalf of the accused
that entire assets and liability of the complainant have
been sold to ALTHEA Group in the year 2017 itself which
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has been admitted by CW-1 in his cross-examination. It
was also argued that CW-1 has not produced any
authority given to him by ALTHEA Group authorizing him
to deposed in this case. Therefore, CW-1 cannot represent
on behalf of ALTHEA Group.
50. It is pertinent to note that this complaint is
filed by M/s TBS India Telematics and Biomedical
Services Private Limited. ALTHEA Group of companies
may be a parent company of the complainant. It is
pertinent note that PAN card of complainant produced at
Ex.P30 and GST registration certificate produced at
Ex.P31 indicate that the complainant is an independent
company. As could be seen from IT return at Ex.P32 that
the complainant has filed income tax return in its name
for the assessment year 2021-22. This complaint was filed
in the year 2021 through CW-1, who was authorized by
the Board of Directors of the complainant under board
resolution dated 20.02.2020, extract of which is produced
at Ex.P21, to file criminal case under Section 138 of NI
Act against the accused herein and others. The said
document has been signed by the Director of a company
by name, Chelvadorai Nithyanandam. Therefore, there is
no basis for the accused to contend that the complainant
company is not in existence and that CW-1 is not
authorized to file the present complaint.
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51. As noted above, under 'Monthly Schedule of
Payments', reference of which is finding place in Clause
4.1(ii) of Ex.P24/P34, accused are liable to pay User Fee
for a period of 72 months with applicable taxes. As noted
above, accused No.2 and 3 have signed Ex.P24/34 and
the 'Monthly Schedule of Payments' annexed to the
agreement. They have used the equipment supplied by the
complainant in terms of User Fee Agreement. Therefore,
they are liable to make payment to complainant towards
user fee. Though, the accused are claiming that they have
paid a sum of ₹2,67,00,000/- to the complainant as User
Fee, no documents produced to substantiate the said
claim. CW-1 has admitted during his cross-examination
that under termination notice at Ex.P28, the complainant
has called upon the accused return all the equipments.
He has also admitted that accused have not returned the
equipment to the complainant. Upon appreciation of
evidence on record, this court opines that the complainant
has proved that the accused are due and liable to pay
user fee to the complainant as per 'Monthly Schedule of
Payments'.
52. Learned counsel for the accused has relied on
following judgments:-
1. Dilip Hariramani V/s Bank of Baroda;
(Crl.A.No.7667/2022, DD.09.05.2022)
2. M/s. Sakthi Finance Ltd V/s
K.Selvaraj; 2011 Crl.L.J.3680 (Madras)
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3. Sri.Dattatraya V/s Sharanappa
(Crl.A.No.3257/2024, DD.07.08.2024)
4. Dashrathbhai Trikambhai Patel V/s
Hitesh Mahenrabhai Patel; (2023) 1
SCC 578
5 John K Abraham V/s Simon C
Abraham & Another
(Crl.A.No.2043/2013, DD.05.12.2013)
6. Krishna Janardhan Bhat V/s
Dattatraya G.Hegde; (2008) 4 SCC 54
7. Basalingappa V/s Mudibasappa;
(2019) 5 SCC 418
8. S.P Chengalvaraya Naidu V/s
Jagannath; AIR 1994 SC 853
53. I have gone through judgments cited by the
accused.
54. Law relating to offence under Section 138 of NI
Act is well settled. A drawer of a cheque is deemed to
have committed the offence under Section 138 of the NI
Act, if the following ingredients are fulfilled:
(i) A cheque drawn for the payment of any
amount of money to another person;
(ii) The cheque is drawn for the discharge of
the "whole or part" of any debt or other
liability. "Debt or other liability" means legally
enforceable debt or other liability; and
(iii) The cheque is returned by the bank
unpaid because of insufficient funds.
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55. For constituting offence under Section 138 of
NI Act, the stipulations in the proviso are to be fulfilled.
The conditions in the proviso are as follows:
(i) The cheque must be presented in the bank
within six months from the date on which it
was drawn or within the period of its validity;
(ii) The holder of the cheque must make a
demand for the payment of the "said amount
of money" by giving a notice in writing to the
drawer of the cheque within thirty days from
the receipt of the notice from the bank that
the cheque was returned dishonoured; and
(iii) The holder of the cheque fails to make the
payment of the "said amount of money" within
fifteen days from the receipt of the notice.
56. A negotiable instrument including a cheque
carries presumptions in terms of Section 118(a) and
Section 139 of the N.I.Act.
(i) Section 118(a) of the N.I.Act
provides that every negotiable
instrument was made or drawn for
consideration, and that every such
instrument, when it has been
accepted, indorsed negotiated or
transferred was accepted, indorsed,
negotiated or transferred for
consideration:"
(ii) Section 139 of the N.I.Act provides
as follows:
'Presumption in favour of holder it
shall be presumed, unless the
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contrary is proved, that the holder of a
cheque received the cheque of the
nature referred to in Section 138 for
the discharge, in whole or in part, of
any debt or other liability".
57. Thus, presumption under Section 118(a) and
Section 139 of N.I.Act in favour of the holder of the cheque
that he has received the same for discharge, in whole or in
part of any debt or other liability.
58. Hon'ble Supreme Court in Hiten P.Dalal
V.Bratindranath Banerjee: (2001) 6 SCC 16, held that:
"22. Because both Sections 138 and
139 require that the Court "shall
presume" the liability of the drawer of
the cheques for the amounts for which
the cheques are drawn, as noted in
State of Madras vs.A.Vaidyanatha Iyer
AIR 1958 SC 61, it is obligatory on the
Court to raise this presumption in every
case where the factual basis for the
raising of the presumption had been
established. "It introduces an exception
to the general rule as to the burden of
proof in criminal cases and shifts the
onus on to the accused" (ibid). Such a
presumption is a presumption of law,
as distinguished from a presumption of
fact which describes provisions by
which the court 'may presume" a
certain state of affairs. Presumptions
are rules of evidence and do not conflict
with the presumption of innocence,
because by the latter all that is meant
is that the prosecution is obliged to
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prove the case against the accused
beyond reasonable doubt. The
obligation on the prosecution may be
discharged with the help of
presumptions of law or fact unless the
accused adduces evidence showing the
reasonable possibility of the
nonexistence of the presumed fact."
59. In Krishna Janadhan Bhat V/s Dattatraya
G.Hegde; (2008) 4 SCC 54, Hon'ble Supreme Court held
that:-
"The presumption mandated by Section 139
includes a presumption that there exists a
legally enforceable debt or liability . This is of
course in the nature of a rebuttable
presumption and it is open to the accused to
raise a defence wherein the existence of a
legally enforceable debt or liability can be
contested."
60. It is pertinent to refer to the judgment of the
Hon'ble Apex Court in M/s Kumar Exports Vs. Sharma
Carpets, (2009) 2 SCC 513, wherein it was held:-
"20. The accused in a trial under
Section 138 of the Act has two options.
He can either show that consideration
and debt did not exist or that under
the particular circumstances of the
case the non existence of
consideration and debt is so probable
that a prudent man ought to suppose
that no consideration and debt
existed. To rebut the statutory
presumptions an accused is not
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expected to prove his defence beyond
reasonable doubt as is expected of the
complainant in a criminal trial. The
accused may adduce direct evidence
to prove that the note in question was
not supported by consideration and
that there was no debt or liability to be
discharged by him. However, the
Court need not insist in every case
that the accused should disprove the
nonexistence of consideration and
debt by leading direct evidence
because the existence of negative
evidence is neither possible nor
contemplated. At the same time, it is
clear that bare denial of the passing of
the consideration and existence of
debt, apparently would not serve the
purpose of the accused. Something
which is probable has to be brought on
record for getting the burden of proof
shifted to the complainant. To disprove
the presumptions, the accused should
bring on record such facts and
circumstances, upon consideration of
which, the Court may either believe
that the consideration and debt did
not exist or their nonexistence was so
probable that a prudent man would
under the circumstances of the case,
act upon the plea that they did not
exist. Apart from adducing direct
evidence to prove that the note in
question was not supported by
consideration or that he had not
incurred any debt or liability, the
accused may also rely upon
circumstantial evidence and if the
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circumstances so relied upon are
compelling, the burden may likewise
shift again on the complainant. The
accused may also rely upon
presumptions of fact, for instance,
those mentioned in Section 114 of the
Evidence Act to rebut the
presumptions arising under Sections
118 and 139 of the Act."
61. In Rangappa V/s Sri.Mohan; (2010) 11 SCC
441, Hon'ble Supreme Court held that, ordinarily in
cheque bouncing cases, what the courts have to consider
is whether the ingredients of the offence enumerated in
Section 138 of the Act have been met and if so, whether
the accused was able to rebut the statutory presumption
contemplated by Section 139 of the Act.
62. Hon'ble Apex Court in the case titled as Bir
Singh vs Mukesh Kumar, (2019) 4 SCC 197 where it
was held as follows:
"33. A meaningful reading of the
provisions of the Negotiable
Instruments Act including, in
particular,, Sections 20, 87 and 139,
makes it amply clear that a person who
signs a cheque and makes it over to the
payee remains liable unless he
adduces evidence to rebut the
presumption that the cheque had been
issued for payment of a debt or in
discharge of a liability. It is immaterial
that the cheque may have been filled in
by any person other than the drawer, if
the cheque is duly signed by the
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drawer. If the cheque is otherwise
valid, the penal provisions of Section
138 would be attracted.
34. If a signed blank cheque is
voluntarily presented to a payee,
towards some payment, the payee may
fill up the amount and other
particulars. This in itself would not
invalidate the cheque. The onus would
still be on the accused to prove that the
cheque was not in discharge of a debt
or liability by adducing evidence."
63. Further, in the case of Basalingappa vs
Mudibasappa, (2019) 5 SCC 418, Hon'ble Supreme court
held that:-
"25. We having noticed the ratio laid
down by this Court in above cases on
Sections 118(a) and 139, we now
summarise the principles enumerated
by this Court in following manner:
(i) Once the execution of cheque is
admitted Section 139 of the Act
mandates a presumption that the
cheque was for the discharge of any
debt or other liability.
(ii) The presumption under Section 139
is a rebuttable presumption and the
onus is on the accused to raise the
probable defence. The standard of
proof for rebutting the presumption is
that of preponderance of probablities.
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(iii) To rebut the presumption, it is open
for the accused to rely on evidence led
by him or accused can also rely on the
materials submitted by the
complainant in order to raise a
probable defence. Inference of
preponderance of probabilities can be
drawn not only from the materials
brought on record by the parties but
also by reference to the circumstances
upon which they rely.
(iv) That it is not necessary for the
accused to come in the witness box in
support of his defence, Section 139
imposed an evidentiary burden and not
a persuasive burden.
(v) It is not necessary for the accused to
come in the witness box to support his
defence."
64. In Kalamani Tex and Anr. V/s
Balasubramanian, 2021 SCC Online SC 75, Hon'ble
Supreme Court held that:
"14. Adverting to the case in hand, we
find on a plain reading of its judgment
that the trial Court completely
overlooked the provisions and failed to
appreciate the statutory presumption
drawn under Section 118 and Section
139 of NIA. The Statute mandates that
once the signature (s) of an accused on
the cheque/negotiable instrument are
established, then these 'reverse onus'
clauses become operative. In such a
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situation, the obligation shifts upon the
accused to discharge the presumption
imposed upon him."
65. From the ratio laid down in the aforesaid
judgments, it is clear that for the offence under Section
138 of the Act, the presumptions under Section 118 (a)
and Section 139 of N.I.Act have to be raised as soon as
execution of cheque by the accused is admitted or proved
by the complainant and thereafter, burden shifts on the
accused to prove otherwise. However, presumptions, both
under Sections 118 and 139 of N.I.Act are rebuttable in
nature.
66. In the present case, as noted above, DW-1
admitted that cheque at Ex.P1 drawn from the account of
accused No.1 and signed by accused No.2 (DW-1).
However, he has stated that he has issued the cheque(s)
for security. Having regard to the fact that DW-1 has
admitted drawing of the cheque in favour of the
complainant and his signature on the cheque,'reverse
onus' clauses become operative. In such a situation, the
obligation shifts upon the accused to discharge the
presumption. Thus, burden is on the accused to discharge
the mandatory presumption under Section 118(a) and 139
of NI Act. However, the accused have failed to probablize
their defence in order to rebut the statutory presumption.
Upon appreciation of evidence placed on record, this court
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comes to the conclusion that the complainant has proved
that case that the cheque was drawn by the accused for
discharge of legally enforceable debt.
67. Indisputably, cheque at Ex.P1 was presented
for encashment well within its validity period and it was
dishonored for the reason 'funds insufficient', vide bank
memo dated 10.01.2020, marked at Ex.P2. After the
receipt of intimation of dishonor of cheque from the bank,
the complainant got issued a demand notice dated
31.01.2020, as per Ex.P3, calling upon all the accused to
pay the dishonored cheque amount. The said notice
served on all the accused and they have issued reply
dated 15.02.2020 as per Ex.P20, denying their liability
under cheque and thus, they have not complied with the
demand made in the legal notice. Thus, in view of Section
138 of the N.I.Act, offence is deemed to have been
committed. As noted above, the accused have failed to
make out a probable defence so as to dismantle the
presumption contemplated under Sections 118(a) and 139
of N.I.Act. Admittedly, accused No.2 and 3 are the
partners of accused No.1 firm. Accused No.2 has signed
the cheque of accused as its partner. Therefore, all the
accused are to be held guilty. Therefore, I answer Point
No.1 in the Affirmative.
68. Point No.2:-Punishment prescribed for the
offence under Section 138 of Negotiable Instruments Act
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is imprisonment for a period which may extend to two
years or with fine which may extend to twice the amount
of the cheque or with both. In this case, User Fee
Agreement was entered in June 2017 and as per
amendment to User Fee Agreement, the accused are liable
to pay monthly user fee from 01.06.2018. But, they have
failed to pay user fee to the complainant as agreed. It is
brought on record that the accused are still possessing
the equipments that were supplied by the complainant.
Considering the facts and circumstances of this case and
year of the transaction, this court is of the considered view
that it is just and desirable to impose fine of
₹9,00,00,000/- and out of the said amount, it is just and
proper to award a sum of ₹8,99,90,000/- as
compensation to the complainant as provided under
Section 357(1) (b) of Cr.P.C and the remaining sum of
₹10,000/- shall go to State. In view of the findings
recorded above, I proceed to pass the following:
ORDER
Acting under Section 255(2) of Cr.P.C.,
accused are held guilty and convicted for the
offence punishable under Section 138 of
Negotiable Instruments Act.
Accused are sentenced to pay a fine of
₹9,00,00,000/-(Rupees Nine Crore only). In
default to pay fine, accused No.2 and 3 shall
undergo simple imprisonment for a period of
two years.
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Out of the realized fine amount, a sum of
₹8,99,90,000/- is ordered to be paid to the
complainant as compensation and the
remaining sum of ₹10,000/- shall be remitted
to State.
Bail bonds executed by accused No.2 and
3 shall stand cancelled.
Office to supply a free copies of this
judgment to all accused.
(Dictated to the Stenographer, transcript computerized by her,
revised corrected and then pronounced by me in the open Court
on this the 23rd day of April, 2025)
( SANTHOSH S.KUNDER )
XIV Addl. C.J.M., Bengaluru.
ANNEXURES
List of witnesses examined for the Complainant:
PW.1 Papanna
List of documents marked for the Complainant:
Ex.P.1 Cheque
Ex.P.1(a) Signature of the accused No.2
Ex.P.2 Bank endorsement
Ex.P.3 Copy of legal notice dated 31.01.2020
Ex.P.4 Postal receipts (8 in Nos.)
to 11
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Ex.P.12 Speed post acknowledgment cards (8 in
to 19 Nos.)
Ex.P.20 Reply notice dated 15.02.2020
Ex.P.21 Extract of Board resolution of
complainant dated 20.02.2020
Ex.P.22 Emails
Ex.P.23 Section 65(B) certificates
& 33
Ex.P.24 Certified copies of User Fee Agreement
& 34 dated 29.06.2017
Ex.P.25 Certified copy of amendment to User
Fee Agreement dated 29.06.2017
Ex.P.26 Certified copy of indemnity bond dated
29.06.2017
Ex.P.27 Certified copy of deed of personal
guarantee dated 30.06.2017
Ex.P.28 Certified copy of termination notice
dated 06.11.2019
Ex.P.29 Certified copy of reply dated 14.11.2019
issued to Ex.P28
Ex.P.30 PAN Card of complainant
Ex.P.31 GST registration certificate of
complainant
Ex.P.32 Income tax returns of complainant for
the Assessment year 2021-22
List of witness examined for the defence:
DW.1 Dr.S.P. Yoganna
List of documents marked for the defence:
Ex.D.1 Certified copy of sworn statement
affidavit of Papanna in
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Ex.D.2 Certified copy of claim petition filed in
A.C.No.176/2021
Ex.D.3 Certified copy of issues framed in
A.C.No.176/2021
Ex.D.4 Letter dated 17.12.2019 address by the
complainant
Ex.D.5 E-mail dated 07.01.2020
Ex.D.6 Certified copy of registered deed of
reconstitution of partnership dated
26.09.2018
Ex.D.7 Certified copy of Amended deed of
partnership dated 08.01.2014
Ex.D.8 Certified copy of deed of partnership
dated 18.07.1998
Ex.D.9 Certified copy of application in
Com.AA.No.24/2020 along with
interlocutory application and order
dated 03.11.2020
Ex.D.10 Certified copy of list of equipments
Ex.D.11 Certified copy of list of equipments
installed
Ex.D.12 Certified copy of revenue sharing
schedule to amended User Fee
Agreement dated 01.06.2018
Ex.D.13 Certified copy of statement of revenue
sharing
Ex.D.14 Certified copy of statement of amount
paid to complainant
Ex.D.15 to Certified copies of letters with
20 statements of revenue generated from
the equipments
Ex.D.21 Certified copy of letter dated 10.03.2019
61
C.C.No.52005/2021
KABC0C0066082021address to complainant
Ex.D.22 Certified copy of Award passed in
A.C.No.176/2021XIV Addl.C.J.M., Bengaluru.
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