Bangalore District Court
Jayarama Reddy vs Umesha.S on 8 June, 2018
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 8th day of June - 2018
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.12873/2017
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Jayarama Reddy,
S/o.Boja Reddy,
Aged about 45 years,
1st Main, Beside Vijayanagar Club,
RPC Layout, Hampingar,
Bengaluru-560 104.
(Rep. by Sri.H.N.Manjunath, Adv.)
V/S
Accused : Umesha.S,
S/o.Poojari Shivaling,
Aged about 45 years,
Sannabanahalli, Tagachagere Post,
Channapatna Taluk,
Ramanagara District.
(Rep.by Sri.T.Swaroop, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 08.06.2018.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.12873/2017
JUDGMENT
The complainant has presented the instant complaint against the accused under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque amount of Rs.2,00,000/-.
2. The facts raised by the complainant in the complaint in brief is as follows:
The complainant and accused were known to each other since six years. In that acquaintance, the accused approached the complainant for hand loan of Rs.2 lakhs to meet out his financial problems. After considering the request of accused, on 20.05.2016, the complainant has paid sum of Rs.2 lakhs to the accused as hand loan. While borrowing the said hand loan amount, the accused has promised to repay the same within one year.
The complainant has further alleged that, after stipulated period, the complainant has demanded to repay the said loan amount, towards discharge of the debts and liability, in the last week of November, 2016, the accused has issued a cheque bearing No.030081 dated:20.01.2017 drawn for Rs.2 lakhs, drawn on Judgment 3 C.C.12873/2017 Karnataka Bank Ltd., Vijayanagar, Bengaluru in favour of complainant.
The complainant further contended that, at the request of the accused, for encashment of the said cheque presented before his banker on 20.01.2017, but it was shock and surprise of complainant, the said cheque was returned unpaid for the reasons, "Funds Insufficient"
dated:21.01.2017. Thereafter, the complainant got issued legal notice to the accused on 14.02.2017 by speed post through his counsel, calling upon him to repay the cheque amount within 15 days from the date of receipt of the legal notice. The legal notice sent through speed post was duly served upon accused on 15.02.2017. Neither the speed post cover nor speed post Acknowledgment was returned, and as such complainant counsel has made complaint before the post master. After receipt of notice, accused has neither paid the cheque amount nor replied the notice. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, the complaint.
3. After presentation of the complaint before this court, my predecessor in office has taken the cognizance and got registered the case and recorded the sworn statement of the complainant and Judgment 4 C.C.12873/2017 got marked Exs.P1 to P5. Thereafter, since the complainant made out prima-facie case to proceed against the accused, the instant criminal case has been registered and process was issued to the accused.
4. In response to the summons, the accused appeared through his counsel before this court and obtained the bail. After receipt of the copy of the complaint as required, the accusation read over and explained to the accused, he denied the same and claimed to have the defence. Thereafter, the sworn statement of complainant treated as complainant evidence, the application required under Section 145(2) of Negotiable Instruments Act was submitted by the accused. When the stage is set for arguments, at that time both the parties, submitted the joint memo reporting their settlement.
5. Heard both side.
6. On going through the materials available on record, the following points have been arisen for determination:
1) Whether the complainant proves that, he complied all the required mandatory provisions to maintain the present case against the accused? Judgment 5 C.C.12873/2017
2) Whether the complainant proves that, the accused has issued the cheque at Ex.P1 for the payment of legally recoverable debt payable to him?
3) What Order?
7. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : As per final order, for the following:
REASONS
8. POINT NOs.1 and 2: Since these two points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
On going through the rival contentions taken by the complainant as well as accused during the course of recording of plea, the fact that, the accused is known to the complainant since many years is not in dispute. The fact that, the Ex.P1 cheque belongs to the accused and the signature found therein Ex.P1(a) belongs to him is also not in dispute. Through out the case, the accused has not disputed the compliance of mandatory provisions to maintain the present case.
Judgment 6 C.C.12873/2017
9. In order to prove the case of complainant, the complaint averments has reiterated in the affidavit filed in lieu of his chief examination. The PW.1 supported with documents at Exs.P1 to P5, which are:
a) Ex.P1 is the cheque bearing No.030081 issued by the accused for sum of Rs.2,00,000/- dated:20.12.2017, drawn on Karnataka Bank Ltd., Vijayanagar Branch, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Legal Notice dated:08.02.2017.
d) Ex.P3 is the Postal receipt.
e) Ex.P4 is the complaint dated:14.03.2017 lodged by the complainant counsel before the Post Master, regarding report of delivery of notice sent by speed post, and
f) Ex.P5 is the Track Consignment.
10. No doubt, during the record of plea, the accused denied the very allegations made against him, but got settled the dispute with the complainant as per the joint memo submitted by both the parties through their respective counsels. By filing of the joint memo, the accused has admitted his liability arised through Ex.P1 cheque. By way of filing joint memo, the accused undertakes to pay the money under following terms, for the tune of Rs.1,00,000/- out of the cheque amount of Rs.2,00,000/-. The joint memo filed by both the Judgment 7 C.C.12873/2017 complainant and accused voluntarily through their respective counsels with regard to the payment, which runs thus:
"The accused has already paid sum of Rs.7,000/- to the complainant on 10.04.2018, and the accused undertakes to pay the remaining amount of Rs.93,000/- on 14 installments at Rs.7,000/- each on 10.06.2018 to 10.08.2019".
11. On going through the said joint memo submitted by both the parties, it made clear that, the complainant and accused have settled the dues for sum of Rs.1,00,000/- in respect of the Ex.P1 cheque. As per their agreed terms and conditions, the accused as mentioned above agreed to clear the dues on or before 10.08.2019 in 14 installments. The complainant agreed to receive the said amount. Therefore, the settlement entered into between complainant and accused through their respective counsels has to be considered in the best interest of the parties.
12 On going through the joint memo, it made clear that, the accused has already paid sum of Rs.7,000/- to the complainant on 10.04.2018, and the accused undertakes to pay the remaining amount of Rs.93,000/- in 14 installments on or before 10th of every month at Rs.7,000/-. After calculation of the said amount, it Judgment 8 C.C.12873/2017 discloses that, 7,000X14 it amounts to Rs.98,000/- and regarding the excess of Rs.5,000/- payment is not specified by the accused or the complainant in the joint memo. It is not the case of the complainant that, the accused has settled the dispute for sum of Rs.98,000/- as against the cheque amount of Rs.2,00,000/-. Under such circumstances, the ordering to pay Rs.7,000/- per month for the period of 14 months definitely, it caused injustice to the accused. In order to meet the interest of justice, though the accused admitted to pay Rs.7,000/- per month in 14 installments. The Rs.7,000/- is excess collection of installment as against the admitted amount. Therefore, the said Rs.7,000/- of installment has tobe considered as Rs.6,643/-, it amounts to Rs.93,002/-. If that, calculation is taken into consideration for the repayment of the agreed money in 14 installments only to meet the ends of justice. Otherwise, as agreed in the joint memo, the Rs.5,000/- will be excess money and no mode of excess payment is made mentioned in the joint memo. Hence, if the accused is directed to pay sum of Rs.6,643/- per month in 14 equal installments commencing from 10.06.2018 to 10.07.2019, it will meet the ends of justice. If accused failed to pay the said money definitely, the complainant would be more hardship. Therefore, in order bind the joint memo, Judgment 9 C.C.12873/2017 it is just and proper to impose the fine sentence, in case the accused failed to pay the agreed money then only it will provoke the accused to clear the due at the earliest. Accordingly, if the accused fails to pay the continues period of 02 (two) installments, he shall undergo simple imprisonment for 02 months. If that is done, it will meet the ends of justice.
13. As discussed above, the accused has admitted the very transaction and settled the dues for the tune of Rs.93,000/-. Since the accused is admitted, it is just and proper to bind the parties to comply the joint compromise memo submitted by them. Hence, it requires to pass the fine sentence of Rs.93,000/- with a direction to the accused to pay the same as fine amount and in turn, the same fine amount shall be given to the complainant as compensation as per Section 357 (1) of Cr.P.C. If the accused has failed to pay the agreed money, the accused shall under go simple imprisonment for 02 months. Hence, as discussed above, the Point Nos.1 and 2 is answered in the Affirmative.
14. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
Judgment 10 C.C.12873/2017
ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused shall pay the fine of Rs.93,000/- to the complainant.
The said fine amount shall pay as compensation to the complainant.
If the accused is directed to pay sum of Rs.6,643/- per month in 14 equal installments commencing from 10.06.2018 to 10.07.2019, it will meet the ends of justice.
If the accused failed to pay continues two installments as he agreed, as default sentence, the accused shall under go simple imprisonment for 02 (two) months.
The joint memo submitted by both the parties shall be read as part and parcel of this order.Judgment 11 C.C.12873/2017
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
(Dictated to the Stenographer directly on computer typed by him, corrected and then pronounced by me in the open court on this the 8th day of June - 2018) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Jayarama Reddy List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Office copy of legal notice Ex.P3 : Postal receipt Ex.P4 : Complaint dtd:14.03.2017 Ex.P5 : Track events consignment
List of Witnesses examined on behalf of the defence:
- None -
List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.Judgment 12 C.C.12873/2017
08.06.2018.
For Judgment Comp -
Accd -
For Judgment Case called out. Complainant and accused are absent. No representation on behalf of both side. Accused remained absent. Hence, the judgment is passed as per Section 353(6) of Cr.P.C.
Judgment 13 C.C.12873/2017Judgment pronounced in the open court vide separate order.
***** ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused shall pay the fine of Rs.93,000/- to the complainant.
The said fine amount shall pay as compensation to the complainant.
If the accused is directed to pay sum of Rs.6,643/- per month in 14 equal installments commencing from 10.06.2018 to 10.07.2019, it will meet the ends of justice.
If the accused failed to pay continues two installments as he agreed, as default sentence, the accused shall under go simple imprisonment for 02 (two) months.
The joint memo submitted by both the parties shall be read as part and parcel of this order.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.