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M/S.Vijayas Ventures Pvt vs Mr.Y.H.Prathap Reddy @ on 11 January, 2023

 KABC020147222018




   BEFORE THE COURT OF XIV ADDITIONAL SCJ &
 ACMM, MEMBER AND THE MOTOR ACCIDENT CLAIMS
                   TRIBUNAL
            (SCCH­10) AT BENGALURU

    DATED THIS THE 11th DAY OF JANUARY 2023

           PRESENT: Sri.Allappa.M.Badiger
                                  B.A.L.L.B (Spl.)
                    XIV ADDL. SCJ & ACMM &,
                    MEMBER - MACT,
                    BENGALURU.

                    C.C No.2926/2018

COMPLAINANT               :   M/s.Vijayas Ventures Pvt., Ltd.,
                              A company having its office at
                              No.999­A, Perody house, MSRS
                              Nagar, Vijaya bank lyout,
                              Bannerghatta road
                              IIM post, Bangalore­560076,
                              Rep by its MD.,
                              Mr.G.B.Vijaya Kumar


                                  (By Sri.K.V.S. Advocate)
                    V/s

ACCUSED                       Mr.Y.H.Prathap        Reddy        @
                              Y.H.Prathap
                              S/o Sri.P.Hanuma Reddy
                              No.65, 11th main, 1st stage
                        2                     C.C.No.2926/2018
                                                    SCCH-10


                            BTM layout,
                            Bangalore­560029.

                                 (By Sri.M.L.S.. Advocate)



                       JUDGMENT

This is the complaint instituted by the complainant against the accused under section 200 Cr.P.C. for the offence punishable under section 138 of Negotiable Instrument Act­1881.

2. The averments of thse complainant in brief is as follows:

It is the case of the complainant that the accused is the owner of converted land bearing Sy.No.No.95/1 situated at Yaranadahalli village, Anekal Taluk measuring 12.639 sq.ft. and accused and their family members entered into joint development agreement on 16­11­2012 to develop the property and accused has executed GPA dated 16­11­2012, due to some legal complication the complainant could not complete the construction work in time thereby both mutual decided 3 C.C.No.2926/2018 SCCH-10 the matter and decided and agreed to rescind from the joint development agreement along with other items of the land given by your brother Mohan Reddy. As per settlement accused and his brother agreed to pay sum of Rs.50,00,000/­ to the complainant. Thereby accused and his family members executed second rectification deed dated 24­7­2017. Therefore to discharge their liability accused has issued post dated cheque to pay amount of Rs.25,00,000/­ as his share through cheque bearing No.882693 dated 8­1­2018 drawn on State Bank of Mysore Bommasandra branch, Bangalore. The complainant has presented the said cheque to the bank for encashment, it was returned dishonoured with a shara as "Funds Insufficient". As per request of accused the complainant presented the cheque once again on 7­ 3­2018 and returned on 9­3­2018 for "Funds Insufficient". Thereafter complainant has intimated the same but accused failed to pay it, hence the complainant has issued legal notice on 5­4­2018. The said legal 4 C.C.No.2926/2018 SCCH-10 notice is served upon the accused. In spite of service of legal notice, accused failed to pay the cheque amount. Thus, the accused has committed the offence punishable U/Sec.138 and 142 of Negotiable Instrument Act. Hence, this complaint has been filed.

3. After filing of the complaint, the sworn statement was recorded and the cognizance of the offence was taken and registered criminal case against the accused and the summons was issued to him. Upon service of the summons, the accused has appeared before the court through his respective counsel and was enlarged on bail. Subsequently, plea was recorded and the substance of the accused was read over and explained to him. He pleaded not guilty and claimed to be tried then the case was posted for complainant evidence.

4. In view of judgment passed by the Hon'ble Apex Court in the case of Indian Bank Association and others V/s. Union of India and others, the sworn statement on 5 C.C.No.2926/2018 SCCH-10 affidavit is treated as evidence of complainant and it is considered as Pw­1 evidence and documents are marked as Ex.P.1 to Ex.P.7(a).

5. Further, the Statement of the Accused U/Sec.313 of Cr.P.C was recorded and incriminating circumstances appeared in the evidence against the accused were read over to the accused and accused denied the all incriminating circumstance appeared in the evidence.

6. In this case, the matter was posted for cross­ examination of PW­1 and on 30­12­2022 the accused present and counsel present and filed memo stating that the accused is ready to pay the cheque amount and pronounce the judgment as accused is ready to pay the cheque amount.

7. On 30­12­2022 the counsel for the complainant was present and complainant also present and they have given consent to the pronounce the judgment on memo 6 C.C.No.2926/2018 SCCH-10 of the accused and same has been consented by signature to the order­sheet dt.30­12­2022.

8. Now the points that arise for my consideration are as follows:­

1. Whether the complainant prove beyond all reasonable doubt that the accused had issued a cheque bearing No.882693 dated.8­1­2018 for a sum of Rs.25,00,000/­ drawn on State Bank of Mysore, Bengaluru and when the said cheque was presented to the Bank for encashment it was returned unpaid with remarks that "Funds Insufficient" and inspite of service of demand notice he has not paid the amount and there by committed the offences punishable under section 138 R/w section 142 of Negotiable Instrument Act?

2. What order?

SCCH-10

9. On the basis of the materials available on records, my finding to the above points as follows:

POINT NO.1: In the Affirmative.

POINT NO.2: As per the final order for the following:

REASONS

10. POINT No.1: The Complainant has filed this complaint alleging that the accused and his family members have executed joint development agreement with complainant and there was a some legal complication, thereby the complainant could not complete the construction work, therefore both parties agreed to rescind from joint development agreement and executed second rectification deed dt.24­7­2017 and accused issued post dated cheque for sum of Rs.25,00,000/­ cheque bearing No.882693 dt.8­1­2018 drawn on State Bank of Mysore. The said cheque got dishonoured for Funds Insufficient, thereafter accused issued notice but the accused failed to pay the cheque amount.

SCCH-10

11. To substantiate its case, the complainant produced documents as per Ex­P1 to Ex­P7a. The Ex­P1 is the agreement of undertaking, Ex­P2­cheque, Ex­P3­ memo, Ex­P4­legal notice, Ex­P5­postal receipt, Ex­P6­ complaint to the post office and Ex­P7 is the postal reply and Ex­P7a is the postal report.

In this case after appearance of the accused matter posted for cross of PW­1. On 30­12­2022 the accused filed memo stating in para No.5 and 6 that, Para No.5­The accused submit that,thereafter both have mutually decided and agreed to rescind from the joint development of the schedule property of the accused. As per the settlement, the accused has to pay Rs.25,00,000/­ to the complainant. Accordingly both parties have executed the (entered) second rectification deed dated 24­7­2014, in that regard the accused given alleged subject matter cheque No.882693 dt.8­1­2018 to the 9 C.C.No.2926/2018 SCCH-10 complainant. The complainant presented the cheque through his banker same ha been dishonoured with insufficient funds.

Para No.6­ The accused submit that, rightly or wrongly agreed to pay amount of Rs.25,00,000/­ as per the claim made by the petitioner. Even accused is ready and willing to pay the said amount, in spite of that complainant is not ready to receive the said amount with an intention to harass the accused and complainant filed a suit also O.S.937/2021 against accused.

12. The accused has admitted the issuance of cheque and its liability by filing memo. At the time of filing said memo complainant and his counsel were present and they have given consent to the said memo by signing to the order­sheet and order dt.30­12­2022. Therefore, it shall be draw the presumption in favour of complainant as cheque has been issued by the accused for discharge of his 10 C.C.No.2926/2018 SCCH-10 liability. Therefore when it is fit case to draw presumption in favour of complainant and presumption is drawn it is proved that accused has issued cheque for discharge of liability. Moreover the accused has admitted the issuance of cheque and liability and accused is ready to pay cheque amount.

13. The complainant and his counsel submits that they have filed suit O.S.No.937/2021 pending on the file of the Senior Civil Judge and JMFC, Anekal and contention of the both parties with respect to the said suit are kept open and they are at liberty to contest the matter in accordance with law.

14. Therefore in view of memo by the accused, without much discussion and without calling complainant to prove the guilt of accused accused has to be convicted for the offence punishable u/s 138 of NI Act. Hence, I am of the opinion that accused has issued cheque as per Ex­P2 and the said cheque has been dishooured. Therefore, accused is liable to be convicted. Hence, I answer to the point No.1 in the Affirmative. 11 C.C.No.2926/2018

SCCH-10

15. POINT NO.2: In view of the reasons stated and discussed above, the complainant has proved the guilt of the accused punishable under section 138 of N.I. Act., therefore, keeping in mind the time when the transaction has taken place and primary object of the provision, this court is of the opinion that, rather than imposing punitive sentence, if sentence of fine is imposed with a direction to compensate the complainant for its monitory loss, by awarding compensation U/Sec.357 of Cr.P.C, would meet the ends of justice. The amount covered under the disputed cheque is Rs.25,00,000/­. By considering all these aspects, this court is of the opinion that, it is just and proper to imposed fine amount of Rs.25,10,000/­ out of which compensation of Rs.25,00,000/­ has to be awarded to the complainant U/s.357 Cr.P.C. Accordingly, this court proceeds to pass the following;

ORDER Acting under section 255 (2) of Criminal Procedure Code, accused is here by convicted for the offence punishable under section 138 of 12 C.C.No.2926/2018 SCCH-10 Negotiable Instrument Act and accused is sentenced to pay fine of Rs.25,10,000/­. In default thereof accused shall undergo simple imprisonment for the term of 6(Six) months.

Acting under section 357(1) (b) of code of criminal procedure, it is ordered that, Rs.25,00,000/­ therefrom shall be paid to the complainant as a compensation, remaining fine amount of Rs.10,000/­ is defrayed to the state for the expenses incurred in the prosecution.

Office is directed to supply free copy of the judgment to the accused.

The bail bond shall stand cancelled. (Dictated to the Stenographer directly on computer, typed by her and corrected by me and then pronounced in the open court on 11th day of January 2023) (ALLAPPA. M. BADIGER) XIV ADDL.SMALL CAUSES JUDGE & ACMM, BENGALURU.

::A N N E X U R E::

LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:­ P.W.1 : G.B.Vijaya Kumar 13 C.C.No.2926/2018 SCCH-10 LIST OF DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:­ Ex.P.1 : Agreement of undertaking Ex.P.2 : Cheque bearing No.882693 Ex.P.2 (a) : Signature of the accused Ex.P.3 : Bank endorsement Ex.P.4 : Legal Notice Ex.P.5 : Postal receipt Ex.P.6 : Copy of complaint given to the post office Ex.P.7 : Reply by the post office Ex.P.7a : Postal endorsement LIST OF WITNESSES EXAMINED ON BEHALF OF THE ACCUSED:­ NIL LIST OF DOCUMENTS MARKED ON BEHALF OF THE ACCUSED:­ NIL (ALLAPPA. M. BADIGER) XIV ADDL.SMALL CAUSES JUDGE & ACMM, BENGALURU.