Bangalore District Court
Provisions Of The Companies Act. Having ... vs 2) Mr. Santosh D'Souza - Partner on 22 June, 2018
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 22nd DAY OF JUNE, 2018
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.52789/2017
M/s. Usha International Ltd.,
A Company incorporated under the
COMPLAINANT provisions of the Companies Act. Having its
Divisional Office at 401, 4th Floor, Pride
Hulkul, No.116, Lalbagh Road, Bengaluru-27
Reptd by its Officer-Sri.D.S.Krishnamurthy
1) M/s. Lighting Empire
A Partnership Firm, Office at No.243, 9th
Main, Yes Bee Plaza, 3rd Block, Jayanagar,
Bengaluru - 560 011.
Reptd by its Partner - Mr. Santosh D'Souza
ACCUSED 2) Mr. Santosh D'Souza - Partner
S/o. Mr. Michel D'Souza
Aged about 43 years.
3) Mr. Ashish D'Souza - Partner
S/o. Mr. Francis D'Souza
Aged about 25 years.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE Pleaded not guilty
ACCUSED
FINAL ORDER Accused is convicted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. 52789/2017
JUDGMENT
The complainant company has approached this court through its Sales Administration Head-cum-P.A. Holder with the complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 r/w Sec.141 of Negotiable Instruments Act, 1881. (herein after referred as N.I. Act)
2. The case of the complainant is that, the complainant company had supplied and delivered various materials, goods to the accused on various dates. For due payment of such supplies made by the complainant, the accused nos.2 & 3 being the partners of accused no.1 firm issued cheque bearing No.674201 dated 29.01.2017 for Rs.4,39,595/- drawn on Canara Bank, Mahila BKG branch, Bengaluru in favour of the complainant. As per the assurance and promise of the accused nos.2 & 3, the complainant presented the said cheque for collection through its banker HDFC Bank Ltd., Shalco Center, Richmond road, Bengaluru, but the said cheque returned dishonoured for the reason "funds insufficient" vide endorsement dated 23.02.2017. It is further case of the complainant that after dishonour of the cheque, the complainant company got issued legal notice to the accused persons on 13.03.2017 by PRAD calling upon them to pay the cheque amount with interest within 15 days from the 3 C.C. 52789/2017 date of receipt of the said notice. Though the said notice was served on the accused on 15.03.2017, the accused neither complied with the demand made in the said notice nor issued any reply 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.
3. 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 company 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 persons for the offence punishable U/s.138 of N.I. Act and summons was ordered to be issued.
4. In pursuance of the summons issued by this court, the accused nos.2 & 3 being the representative of accused no.1 firm have put up their appearance through their counsel and enlarged on bail. Thereafter plea was recorded. The accused have denied the substance of accusation and claimed for trial.
5. In order to prove the case of the complainant, the representative of the complainant company is examined as CW.1 and got marked as many as 12 documents as per 4 C.C. 52789/2017 Ex.P1 to P12 and closed his evidence. The accused have not opted to file application U/s.145(2) of the N.I. Act and as such 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], the case was posted for defence evidence as there is no need of recording statement of the accused U/s.313 Cr.PC. 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 their settlement. In view of the settlement, the learned counsel for the accused submitted that the accused have no evidence on their behalf and the learned counsel 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 the settlement.
6. Heard the learned counsel for both parties and perused 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?5 C.C. 52789/2017
2) Whether the application filed U/s.147 of N.I. Act by the parties could be allowed?
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 company, the P.A holder-cum-Sales Administrative Head of the complainant company 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 the representative of the complainant company has produced cheque dtd.29.01.2017, bank endorsements (2 in nos.) dtd.23.02.2017, office copy of the notice dtd.13.03.2017 (3 in nos.), three postal receipts dtd.13.03.2017 for having sent notice by RPAD to the accused persons and three postal acknowledgements for having service of notice on the accused persons as per Ex.P1 6 C.C. 52789/2017 to P12 respectively. The contents of Ex.P1 to P12 are analyzed, they clearly support the version of the complainant. The contents of Ex.P1 - cheque, bank endorsements i.e Ex.P2 and P3 reveal that the accused nos.2 & 3 being partners of accused no.1 firm had issued cheque dated 29.01.2017 for Rs.4,39,595/- drawn on Canara Bank, Mahila BKG branch, Jayanagar, Bengaluru in favour of the complainant company and the complainant company had presented the same for encashment on 22.02.2017 and the said cheque was returned dishonoured for the reason "funds insufficient" on 23.02.2017 as contended by the complainant. Further, from the contents of Ex.P4 to P12, it is clear that after dishonour of the cheque as found in Ex.P3, the complainant company itself issued notice dtd.13.03.2017 as per Ex.P4 to P6 to the accused nos.1 to 3 by RPAD intimating the dishonour of the cheque and calling upon them to pay the cheque amount with over due interest and bank charges. The said notice was served on the accused persons on 15.03.2017. The complainant presented the complaint on 24.04.2017 i.e after lapse of 15 days from the date of service of notice on accused persons and within 30 days 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 persons within statutory time and filed the complaint within the prescribed period. Admittedly, the accused nos.1 to 3 had not complied with the demand made 7 C.C. 52789/2017 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 have admitted the cheque. As already stated though the accused have put up their appearance through their counsel and denied the substance of acquisition, they have not opted to cross- examine CW.1 and thereby not opted to dispute the evidence placed on behalf of the complainant company. 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 company 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. As stated earlier, in this case when the case was posted for defence evidence, the parties have settled the matter between them for Rs.5,00,000/- towards cheque amount of Rs.4,39,595/-. The accused nos.2 & 3 being the partners of accused no.1 firm has agreed to pay the said amount in seven installments at Rs.71,500/- each commencing from 15.06.2018 till 15.12.2018. In view of 8 C.C. 52789/2017 the settlement, the parties 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. Now by filing the application U/s.147 of N.I. Act, the parties are seeking judgment in terms of their settlement. 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 have agreed to pay the settled amount of Rs.5,00,000/- in equal seven installments at Rs.71,500/- each commencing from 15.06.2018 till 15.12.2018. 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. 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.
9 C.C. 52789/201710. 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(1) of Cr.PC r/w Sec.147 of N.I. Act, the accused are 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.5,00,000/- towards cheque amount of Rs.4,39,595/- in seven installments at Rs.71,500/- each commencing from 15.06.2018 till 15.12.2018 without fail. If the accused persons fail to pay any installments as agreed, the complainant is at liberty to recover the double the cheque amount excluding the amount paid by the accused persons as if fine amount.
The bail bond of the accused nos.2 & 3 stands cancelled. The cash security is deposited by the accused nos.2 & 3 is ordered to be refunded in their favour in accordance with law.
(Dictated to the stenographer, typed by him, transcript corrected by me and pronounced in the open court on this the 22nd day of June, 2018) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 10 C.C. 52789/2017 ANNEXURE Witnesses examined for the complainant:
CW.1 : Mr. D.S. Krishnamurthy
Witnesses examined for the defence:
NIL
Documents marked for the complainant:
Ex.P1 : Cheque
Ex.P2 & 3 : Bank endorsements
Ex.P4 to 6 : Legal Notices
Ex.P7 to 9 : Postal receipts
Ex.P10 to 12 : Postal acknowledgements
Documents marked for the defence:
NIL
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU