Bangalore District Court
Having Its Office At No.13 vs R/At No. E on 2 November, 2018
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 2nd DAY OF NOVEMBER, 2018
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.60300/2017
M/s. Genomics Infotech Pvt., Ltd.,
A Company incorporated under the
Companies Act
COMPLAINANT Having its Office at No.130, Best County-2,
Near Sambram College, MS Palya,
Reptd by its Director/Authorized Signatory
Mr. Vinay Suresh
Mr. Shre Vishal @ Vishal Devraj
S/o. Diwakar
ACCUSED R/at No. E-101, Alpine Pyramid, Rajeev
Gandhinagar, Sahakaranagar, Bengaluru -
560 092.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER
Accused is acquitted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.60300/2017
JUDGMENT
The complainant company has approached this court through its Authorized Representative-cum-Director with the complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 r/w Sec.142 of Negotiable Instruments Act, 1881. (herein after referred as N.I. Act)
2. The case of the complainant company is that, it is the dealer for Apple iPhone and the accused and his mother approached the complainant representing that the accused is the Administrator and Finance Manager and his mother is one of the Directors and Coordinator of "Model Educom Centre"
Company. They had placed purchase order dated 29.05.2017 with a complainant for sale and supply of 40 units Apple iPhone 7,128 GB of total value of Rs.21,92,000/-. Accordingly, the complainant had sold and delivered 40 units of Apple iPhone in terms of Tax Invoice dated 29.05.2017. Towards payment of the said amount, the mother of the accused had issued cheque bearing No.2494982 dtd.31.05.2017 for Rs.21,92,000/- drawn on Axis Bank Ltd., Sahakarnagar Branch, Bengaluru in favour of the complainant. The complainant presented the said cheque for encashment through its banker - IDFC Bank Ltd., Residency 3 C.C. No.60300/2017 Road branch, Bengaluru on 01.06.2017. But the said cheque was returned dishonoured for the reason "Drawer's signature to operate the account not received" vide memo dated 02.06.2017. Thereafter on much persuasion, the accused and his mother had paid Rs.10 lakhs towards part payment of Rs.21,92,000/-. The accused undertook the liability and agreed to discharge the balance due amount of Rs.11,92,000/- in favour of the complainant.
3. It is further case of the complainant that towards discharge of due amount of Rs.11,92,000/-, the accused had issued two cheques dated 02.06.2017 bearing Nos.135594 and 135595 for Rs.10 lakhs and for Rs.1,92,000/- in favour of the complainant. The complainant presented the said cheques through its banker - IDFC Bank Ltd., Residency Road branch, Bengaluru on 02.06.2017, but the said cheques were returned dishonoured for the reason "funds insufficient"
by memos dated 03.06.2017. The accused and his mother through their several correspondences sought for extension of time for payment of the due amount. But they have not kept their promise. Thereafter the complainant got issued demand notice dtd.27.06.2017 to the accused through RPAD demanding payment of the amount covered under the said cheques. The said notice was served on the accused on 04.07.2017. In spite of the service of notice, the accused 4 C.C. No.60300/2017 neither replied to the said notice nor complied with the demand made therein and thereby intentionally committed the offence punishable U/s.138 of N.I. Act. Accordingly on these grounds, the complainant has prayed for punishment to the accused in accordance with law in the interest of justice and equity.
4. After filing of the complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the representative of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons and accordingly Criminal Case was registered against the accused for the offence punishable U/s.138 of N.I. Act and summons was ordered to be issued.
5. In pursuance of the summons issued by this court, the accused has put up his appearance through his counsel and enlarged on bail. Thereafter plea was recorded. The accused has denied the substance of accusation and claimed for trial.
6. In order to prove the case of the complainant, the representative of the complainant is examined as CW.1 and got marked as many as 16 documents as per Ex.P1 to P16 and closed his evidence. The has not opted to file application 5 C.C. No.60300/2017 U/s.145(2) of N.I. Act seeking permission for cross- examination of CW.1 and thereby in view of the decision of the Hon'ble Apex Court reported in (2014) 5 SCC 590 - Indian Bank Association and others Vs Union of India and others - [W.P. (civil) No.18/2013], case was posted for defence evidence. When the case was posted for defence evidence, the parties have settled the matter between them amicably and filed joint application U/s.147 of N.I. Act praying for judgment in terms of the settlement. The learned counsels for both parties prayed for allowing the application filed U/s.147 of N.I. Act and accordingly prayed for passing of the judgment in terms of their settlement. In view of the settlement reached, the learned counsel for the accused has submitted that the accused has no evidence on his behalf and thereby evidence of the parties concluded.
7. Heard the learned counsels for both parties. On hearing the arguments and on perusal of the material on record, the points that would arise for consideration are:-
1) Whether the complainant proves that the accused had issued cheque in question in discharge of the legally recoverable debt and committed the offence punishable under Section 138 of N.I. Act?6 C.C. No.60300/2017
2) Whether the application filed U/s.147 of N.I. Act by the parties could be allowed?
3) What Order?
8. The above points are answered as under;
Point No.1 : In affirmative,
Point No.2 : In affirmative,
Point No.3 : As per the final order,
for the following.......
REASONS
9. Point Nos. 1 and 2: Since these two points are inter linked and to avoid repetition they are taken together for discussion. As already stated in support of the claim of the complainant company, the representative of the complainant company being CW.1 in his sworn statement reiterated the complaint averments in toto which itself is treated as his examination-in-chief in view of the decision of the Hon'ble Apex Court reported in (2014) 5 SCC 590 - Indian Bank Association and others Vs Union of India and others - [W.P. (civil) No.18/2013]. In addition to that he has produced extract of the Board Resolution of the complainant company dtd.24.07.2017, Purchase order dtd.29.05.2017 placed by Model Educom Centre, Tax Invoice dtd.29.05.2017, cheque dtd.02.06.2017, bank endorsement dtd.03.06.2017, another 7 C.C. No.60300/2017 cheque dtd.02.06.2017, bank endorsement dtd.03.06.2017, Seven e-mail messages, office copy of the demand notice dtd.27.06.2017, postal acknowledgement as per Ex.P1 to P16 respectively. The contents of Ex.P1 to P16 are analyzed, they clearly support the version of the complainant. The contents of Ex.P1 disclose the authority of CW.1 to file and prosecute the present complaint, Ex.P2 reveals the purchase order placed, Ex.P3 reveals the supply of Apple iPhone 7,128 GB as put up by the complainant. The contents of Ex.P4 to P7 are analyzed, it is clear that the accused had issued two cheques dtd.02.06.2017 for Rs.10 lakhs and for Rs.1,92,000/- drawn on State Bank of India, Sahakarnagar, Bengaluru in favour of the complainant and in turn, the complainant had presented the said cheques for encashment through IDFC Bank and the same were returned dishonoured for the reason "funds insufficient" by memos dtd.03.06.2017 as per Ex.P5 & P7 as contended by the complainant. Further, the contents of Ex.P8 to P14 i.e e-mail messages also support the claim of the complainant. Ex.P15 and P16 reveal that after dishonour of the cheques as found in Ex.P5 and P7, the complainant got issued legal notice dtd.27.06.2017 as per Ex.P15 to the accused by RPAD and the same was served on the accused on 04.07.2017. The complainant had presented the present complaint on 01.08.2017 i.e after lapse of 15 days from the date of service of notice and within 30 days thereafter.
8 C.C. No.60300/2017Hence on perusal of these aspects, it is clear that the complainant had presented the cheques for encashment within its validity and got issued statutory notice to the accused within statutory time and filed the complaint within the prescribed period. Admittedly, the accused had not complied with the demand made in the notice. Therefore, on going through these documents their remains no doubt that the complainant had complied with all the technical requirements of Sec.138 of N.I. Act in filing the present complaint. The accused has admitted the cheques in question and the same were issued by him. The accused has not opted to cross-examine CW.1 and his evidence remained unchallenged. In the light of these facts, there are no grounds to disbelieve the case of the complainant as to existence of legally recoverable debt and also issuance of cheques by the accused towards discharge of due amount in favour of the complainant as put up by the complainant. The statutory presumptions U/s.118 and 139 of the N.I. Act is also in favour of the complainant. Hence, it is clear that the complainant has proved all the necessary ingredients of Sec.138 of N.I. Act and thereby the commission of the offence punishable under the said section as contended.
9 C.C. No.60300/201710. As stated earlier, when the case was posted for defence evidence, the parties have settled the matter between them and the accused has agreed to pay Rs.8,75,000/- to the complainant being the balance amount covered under the cheques in question. The accused has agreed to pay the said amount in monthly installments at Rs.20,000/- each commencing from 22.11.2018 in 12 installments and the balance amount of Rs.6,35,000/- on or before 22.11.2019 without fail. The accused has also agreed to pay the interest at the rate of 18% per annum in case of any default in making payment. In view of the settlement, the parties have filed joint application U/s.147 of N.I. Act praying for judgment in terms of their settlement. It is needless to say that the offence punishable U/s.138 of N.I. Act is compoundable in nature and the parties are at liberty to settle the matter and thereby compound the offence. Both parties have clearly admitted the contents of the application filed U/s.147 of N.I. Act before the court and stated that it is out of their free will and consent. It is clear from the contents of the application that the accused has agreed to pay Rs.8,75,000/- to the complainant being the balance amount covered under the cheques in question. The accused has agreed to pay the said amount in monthly installments at Rs.20,000/- each commencing from 22.11.2018 in 12 installments and the balance amount of Rs.6,35,000/- on or 10 C.C. No.60300/2017 before 22.11.2019 without fail. The accused has also agreed to pay the interest at the rate of 18% per annum in case of any default in making payment. On going through the contents of the application, this court did not find any grounds to reject the application filed by the parties. There are no reasons to hold that the settlement entered into between the parties is either opposed to the public policy or against to law in any angle. As already stated the offence in question compoundable in nature and since the parties have settled the matter between them, the judgment could be passed on the basis of the said application as sought for by the parties to meet the ends of justice. It is also pertinent to note that in view of the compounding of the offence the accused has to be acquitted. In this regard this court is being guided by the ruling of the Hon'ble Apex court reported in (2010) I SCC 978 - (K.M.Ibrahim Vs K.P.Mohammed and another). Therefore considering all these aspects, this court is of the considered view that point Nos.1 & 2 are required to be answered in affirmative and answered accordingly.
11. Point No.3: For the reasons discussed in connection with Point Nos.1 and 2 this court proceed to pass the following......
11 C.C. No.60300/2017ORDER Acting under Section 255(1) of Cr.PC r/w Sec.147 of N.I. Act, the accused is hereby acquitted for the offence punishable under Section 138 of Negotiable Instrument Act. In view of the compounding of the offence, the accused shall pay Rs.8,75,000/- to the complainant being the balance amount covered under the cheques in question. The accused shall pay the said amount in monthly installments at Rs.20,000/- each commencing from 22.11.2018 in 12 installments and the balance amount of Rs.6,35,000/- on or before 22.11.2019 without fail. If the accused fails to pay the said amount as agreed, the complainant is at liberty to recover the said amount with interest at the rate of 18% per annum from the due date till repayment from the accused as if it is fine amount.
The bail bond of the accused stands cancelled. The cash security of Rs.7,000/- deposited by the accused is ordered to be refunded in his favour through account payee cheque with proper identification in accordance with law, if refund voucher is furnished.
(Typed to my dictation by the stenographer, directly on computer, corrected, signed and then pronounced by me in the open court on this the 2nd day of November, 2018) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 12 C.C. No.60300/2017 ANNEXURE Witnesses examined for the complainant:
CW.1 : Sri. Vinay Suresh
Witnesses examined for the defence:
NIL
Documents marked for the complainant:
Ex.P1 : Extract of Board Resolution
Ex.P2 : Purchase Order
Ex.P3 : Tax Invoice
Ex.P4 & 5 : Two Cheques
Ex.P6 & 7 : Bank endorsements
Ex.P8 to 14: E-mail correspondences
Ex.P15 : Legal Notice
Ex.P16 : Postal acknowledgement
Documents marked for the defence:
NIL
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU