Bangalore District Court
Unit No.201 And 202 vs Also At; on 1 April, 2022
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 1st DAY OF APRIL, 2022
PRESENT
SRI. K. GURUPRASAD, B.A., LL.B (Spl.)
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.54479/2021
Hella Infra Market Private Limited
(Formerly Hella Infra Market Ltd.,)
Du Parc Trinity Building,
COMPLAINANT Unit No.201 and 202, 2nd Floor, M.G. Road,
Bengaluru - 560 025.
Reptd by its Manager Credit Control and
Authorized Signatory - Mr. Francis. R
GVR Constructions
Proprietorship Firm
No.3, Venkateshwara Layout,
Near Nester Raga Outer
Ring Road, Mahadevapura,
Bengaluru Urban - 560 048.
Through its Proprietor - Mr. Gadiraju Vasu
ACCUSED Also at;
Mr. Gadiraju Vasu
Proprietor of GVR Constructions,
Pai Layout, 16th 'E' Cross,
Near Tin Factory,
Bengaluru - 560 016
2
Mr. Gadiraju Vasu
S/o. Chenchuraju
Proprietor of GVR Constructions,
No.6-12-1, Narayanaraju Kandriga,
Govardhanagiri .P, Pichatur, Chittor,
Andhra Pradesh - 517589.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is convicted
(K. GURUPRASAD)
XIV ADDL. C.M.M., BENGALURU
JUDGMENT
The complainant company has approached this court through its complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881.
2. The case of the complainant is that, the complainant company is the Private Limited Company under the Companies Act, 2013 and it has been changed to Hella Infra Market Private Limited vide Certificate of Incorporation dated 21st January 2021. The accused has purchased RMC materials from the complainant company under various invoices and also confirmed the order acceptance form on 10.02.2021 worth of Rs.1,48,000/-. Towards discharge of 3 said liability, the accused had issued a cheque bearing No.000019 dtd.11.03.2021 for Rs.1,48,000/- drawn on Andhra Bank, Kasavanahalli Main Road branch, Bengaluru in favour of the complainant company.
3. It is further case of the complainant that as per the instructions of the accused, when the complainant had presented the said cheque for encashment through its banker for encashment, it came to be dishonoured on 2.6.2021 for the reason "account blocked". Thereafter when the complainant got issued legal notice dated 25.06.2021 to the accused by RPAD., at three available addresses, legal notice sent to first address was returned undelivered with postal endorsement "item return unclaimed" dtd.5.7.2021 and the legal notice sent to second address was also returned undelivered with postal endorsement "item returned insufficient address" dtd.28.6.2021 and the legal notice sent to third address was also returned undelivered with postal endorsement "item returned addressee cannot be located" dtd.1.7.2021. In spite of that the accused neither complied with the legal demand made in the notice nor issued any reply to it 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 and for grant of compensation in the interest of justice and equity.
44. After filing of the complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement 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 order to prove his case, the Manager - Credit Control and Authorized Signatory of the complainant examined himself as PW.1 and got marked Ex.P1 to P13 and closed his side of evidence. The statement U/s.313 Cr.PC was recorded. Accused denied incriminating materials in evidence of CW.1 but not led defence evidence. Both parties have settled the matter between them amicably and filed joint memo dtd.22.03.2022 praying for judgment in terms of the settlement. The learned counsels for both parties advanced argument and prayed for allowing the joint memo and accordingly prayed for passing of the judgment in terms of their settlement.
6. Heard the learned counsel for both parties and perused the material on record. The points that would arise for consideration are:-
51) 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?
2) Whether the complainant is entitled for the relief's prayed for in this case?
3) What Order?
7. 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
8. 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, PW.1 in his examination-in-chief reiterated the complaint averments in toto. In addition to that the complainant has produced cheque, bank endorsement, office copy of the legal notice, three postal receipts, three returned postal covers, three postal track consignments and board resolution as per Ex.P1 to P13 respectively. If the contents of Ex.P1 to P13 are analyzed, they clearly support the version 6 of the complainant. From the contents of Ex.P1 to P13, it is clear that the accused had issued cheque for Rs.1,48,000/- drawn on Andhra Bank, Kasavanahalli Main Road branch, Bengaluru in favour of the complainant and the complainant had presented the same for encashment through its banker and the same was dishonoured for the reason "account blocked" on 2.6.2021 as contended by the complainant. Further, after dishonour of the cheque, the complainant got issued legal notice dtd.25.06.2021 to the accused by registered post at three different addresses and legal notice sent to first address which was returned undelivered with postal endorsement "item return unclaimed" dtd.5.7.2021 and the legal notice sent to second address was also returned undelivered with postal endorsement "item returned insufficient address" dtd.28.6.2021 and the legal notice sent to third address was also returned undelivered with postal endorsement "item returned addressee cannot be located" dtd.1.7.2021. The complainant presented the complaint on 22.07.2021 i.e after lapse of 15 days from the date of return of the notice and within one month thereafter. Hence on perusal of these aspects, it is clear that the complainant had presented the cheque for encashment within its validity and got issued statutory notice to the accused within statutory time and filed the complaint within the prescribed period. Therefore, on going through these 7 documents there 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 cheque in question and his liability to pay the cheque amount to complainant. There are no grounds to disbelieve the case of the complainant as to existence of legally recoverable debt and also issuance of cheque by the accused towards discharge of due amount in favour of the complainant as put up by the complainant. The statutory presumption U/s.118 and 139 of the N.I. Act is also in favour of the complainant. The accused has not cross-examined PW.1 nor has the accused led defense evidence. Accused has failed to rebut said presumption. 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. As stated earlier, in this case, the parties have settled the matter between them for Rs.1,48,000/- towards full and final settlement of the cheque amount (out of which, he had paid Rs.10,000/- on 22.03.2022) and stated that it is out of their free will and consent. It is clear from the contents of the joint memo that the accused has agreed to pay the balance amount in three monthly installments i.e., Rs.38,000/- on 31.03.2022, Rs.50,000/- on 25.04.2022 and Rs.50,000/- on 25.05.2022. In case, the accused has failed 8 to pay the aforesaid installment dates, the complainant is entitled for the defaulted amount plus interest at the rate of 18% per annum. The accused has also agreed to undergo the sentence and pay the fine amount which the court may impose in case of default in payment as agreed.
10. As discussed above, the complainant has proved its case as to commission of the offence punishable U/s.138 of N.I. Act by the accused. Even parties have filed joint memo and admitted regarding the amount to be paid by the accused in this case and the time schedule within which such amount to be paid. The punishment prescribed for the said offence is imprisonment for a period which may extend to two years or with fine. Considering the facts and circumstances of this case and the terms of joint memo dated 22.03.2022, this court is of the considered view that it is just and desirable to impose fine of Rs.1,39,000/- and out of the said amount a sum of Rs.1,000/- has to be remitted to the State and the remaining amount of Rs.1,38,000/- is to be given to the complainant, (within time schedule agreed between the parties in the joint memo) as compensation as provided U/s.357(1) of Cr.PC and accordingly Point Nos 1 & 2 is answered in Affirmative.
911. Point No.3: For the reasons discussed in connection with Point Nos.1 and 2 this court proceed to pass the following......
ORDER Acting under Section 255(2) of Cr.PC accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instruments Act. The accused shall pay a fine of Rs.1,39,000/- for the offence punishable U/s.138 of N.I. Act. In default of payment of fine amount, the accused shall under go simple imprisonment for a period of three months.
By exercising the power conferred U/s.357(1) of Cr.PC., out of total fine amount of Rs.1,39,000/-, a sum of Rs.1,38,000/- is ordered to be paid to the complainant as compensation (in installments and within time schedule agreed in the joint memo dtd.22.03.2022) and Rs.1,000/- is ordered to be remitted to the State.
The bail bond of the accused stands cancelled. The cash security deposited by the accused is ordered to be continued till expiry of the appeal period.
Supply the free copy of this judgment to the accused forth with.
(Typed to my dictation by the stenographer, directly on computer, corrected, signed and then pronounced by me in the open court on this the 1st day of April, 2022) (K. GURUPRASAD) XIV ADDL. C.M.M., BENGALURU 10 ANNEXURE Witnesses examined for the complainant:
PW.1 : Sri. Francis .R
Witnesses examined for the defence:
NIL
Documents marked for the complainant:
Ex.P1 : Cheque Ex.P1(a) : Signature of the accused Ex.P2 : Bank endorsement Ex.P3 : Legal Notice Ex.P4 to 6 : Postal receipts Ex.P7 to 9 : Returned postal covers
Ex.P10 to 12: Postal track consignments Ex.P13 : Board Resolution Documents marked for the defence:
NIL (K. GURUPRASAD) XIV ADDL. C.M.M., BENGALURU