Bangalore District Court
M. Veerabhadra vs Mr. Vinay.K.S on 1 March, 2023
KABC010108952020
Presented on : 25-06-2020
Registered on : 25-06-2020
Decided on : 01-03-2023
Duration
: 2 years, 8 months,
4 days
IN THE COURT OF THE LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU.
Dated this 1 st day of March 2023
-: P R E S E N T :-
Smt. Kalpana M.S.,
B.Sc., LL.M.,PGD-CLCF.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
CRIMINAL APPEAL No.612/2020
APPELLANT : M. Veerabhadra,
(ACCUSED - IN S/o.Late. Munivenkatappa,
TRIAL COURT) : Aged about 36 years,
R/at. No.3, Samvardhini
Nilaya, 1st Cross, 1st Main,
Annaporneshwari Layout,
Chunchaghatta Village,
Konanakunte Post,
Uttarahalli Hobli,
Bangalore-560062.
(By Akram Pasha, Advocate)
2
Crl.A.No.612/2020
/Vs/
RESPONDENT/ Mr. Vinay.K.S,
S/o.Seenappa,
(COMPLAINANT - Aged about 35 years,
IN TRIAL R/at. No.11, Annappa
COURT) : Compound, Sarakki,
Kanakpura Main Road,
J.P. Nagar 1st Stage,
Bangalore-560078.
(By Sri. D.N., Advocate.)
J UD GME N T
Appellant has filed this appeal U/s.374(3) of Code
of Criminal Procedure (hereinafter referred as Cr.P.C.),
for extension of time to deposit the settled amount
before the learned XXII-Addl. Chief Metropolitan
Magistrate, Bengaluru in C.C.No.10841/2018 dated
14.12.2019 and further order for stay in proposed
order FLW/NBW issued by the trial court.
2. Rank of the parties is referred to as per their
ranks assigned before the trial court.
3
Crl.A.No.612/2020
3. The facts of the case leading to this appeal
may be summarized as under;
The respondent is complainant before the trial
court. The complainant has filed a complaint U/s.200
of Code of Criminal Procedure alleging the offence
committed by the accused punishable U/s.138 of
Negotiable Instrument Act (herein after referred as
N.I.Act). According to the complainant, the accused is
the absolute owner and possession of the property
bearing No.27/2, assessment No.16, Katha No.51 of
Haragadde Village, Jigani Hobli, Anekal Taluk,
Bangalore District, measuring 36X75 sq. feet., the
accused offered to sell the schedule property
accordingly agreement of sale dated 15.11.2016
executed between the accused and complainant, the
4
Crl.A.No.612/2020
complainant had paid ₹.10 Lakhs to the accused
towards advance for the sale consideration and he is
agreed to pay the balance amount of the accused for
Rs.5 Lakhs at the time of registration of the sale deed.
Due to same unavoidable circumstances the said sale
transaction could not be completed and as such
cancellation of agreement of sale dated 10.08.2017 vide
document No.BSK-105179-2017-18, stored in CD
No.BSKD 413, was registered before the Sr. Sub-
Registrar, Basavanagudi, Bangalore, and under the
said cancellation of sale agreement, the accused had
returned the advance sale consideration paid by the
respondent by way of cash as well as by way of cheque.
3.1) Further stated that, out of advance sale
consideration of ₹.10 lakhs the appellant had paid ₹.4
lakhs by way of cash on 10.08.2017 and remaining
5
Crl.A.No.612/2020
sum of ₹.6 lakhs was paid by the accused by way of
cheque bearing No.117607 dated 18.08.2017 drawn on
Axis Bank, Bangalore, in favour of the complainant. On
the instruction of the accused the complainant present
the said cheque on 19.12.2017 bank endorsement
received by the complainant from the appellant bank
with a shara "INSTRUMENT OUT DATED STALE". The
complainant immediately approached to the accused
demanding for the cheque amount, thereby the
accused has issued a another cheque bearing
No.808954, dated 17.01.2018 for a sum of Rs.6 Lakhs,
drawn on State Bank of India, J.C Nagar Branch,
Bangalore. On presentation, cheque was returned
unpaid for the reason" Account closed". Statutory
notice dated 30.01.2018 was issued to the accused
informing dishonour of the cheque and requesting him
6
Crl.A.No.612/2020
to pay the cheque amount. As the accused did not pay
the cheque amount within time prescribed by law,
complaint was filed. The trial court took cognizance
and after going through the materials found the prima
facie case against accused for the offence punishable
U/s.138 of Negotiable Instrument Act, registered
criminal case and issued summons.
4. Feeling aggrieved by the said judgment,
accused persons are appeared before this court urging
the following grounds;
The judgment of the trial court is contrary to law
and evidence adduced by the parties. The trial court
has not considered that, the respondent presented the
complaint before the court below, that on 23.01.2018
the sworn statement of the respondent be pleased to
recorded and cognizance taken by the learned
7
Crl.A.No.612/2020
magistrate and issued summons to the appellant. After
receipt of the court summons, he has appeared before
the court below, plea recorded the appellant pleaded
not guilty and pray for evidence. The respondent
examined as Pw.1 and document were marked as
Ex.P.1 to P.8 thereafter on 10.01.2019 the court below
posted the case for cross examination of
Pw.1/respondent. The respondent seek permission
that there is a possibility of the settlement between the
parties. The learned magistrate be pleased to accepted
the joint memo dated 14.12.2019 filed by the appellant
and the respondent, it is amiably settled between the
parties for Rs.7,25,000/- though the disputed cheque
amount of Rs.6,00,000/-.
4.1) Further stated that the court below accord
the permission of joint memo of both the parties on
8
Crl.A.No.612/2020
14.12.2019. The appellant was issued the cheque
bearing No.145900, dated 30.01.2020, drawn on
Syndicate Bank, Bangalore for Rs.7,25,000/- and same
was received by the respondent. Court seeking
extension of time to deposit the amount of
Rs.7,25,000/- which has been settled before the
Lakadalath on 14.12.2019. The disputed cheque of
Rs.6 Lakhs whereas the respondent and appellant have
amicably settled for the payment of Rs.7,25,000/-
accordingly on 14.12.2019 the appellant have issued
the post dated cheque dated 30.01.2020 bearing
No.145900, drawn on Syndicate Bank, Bangalore, and
same has been given before the court below. Therefore,
on these grounds, the accused prays to allow the
appeal and to acquit him for the offence U/s.138 of
N.I.Act.
9
Crl.A.No.612/2020
5. After registration of the appeal, notice was
issued to the respondent. Respondent appeared
through counsel. The entire trial court records have
been secured.
6. This appeal is not filed within the time
prescribed. Hence, application U/s.5 of Limitation Act is
filed for condonation of delay in preferring this appeal.
Objection to the said application is not filed by the
respondent.
7. Heard arguments and perused the materials
on record.
8. The following points do arise for my
consideration;
10
Crl.A.No.612/2020
1. Whether appellant had sufficient cause
for not preferring this appeal within the
period of limitation?
2. Whether appellant has made out
grounds to extend the time to deposit
the settled amount before the trial
court?
3. Whether the appellant has further
made out grounds to stay the proposed
order of issuance of F.L.W./N.B.W. by
the trial court?
4. Whether interference of this court is
necessary in this appeal?
5. What Order?
9. On re-appreciation of oral and documentary
evidence, in the light of the arguments advanced by the
learned advocates for both sides, my findings on the
aforesaid points as follows:-
Point No.1: In the Affirmative
Point No.2: In the Negative
11
Crl.A.No.612/2020
Point No.3: In the Negative
Point No.4: In the Negative
Point No.5: As per final order,
for the following:-
R EAS O N S
10. POINT NO. 1:- Accused has filed application
U/s.5 of Limitation Act for condonation of 161 days delay
in preferring this appeal. Perused the application filed
U/s.5 of Limitation Act, contents of affidavit filed in
support of said I.A. In the affidavit, accused has stated
that, he intend to pay the settled amount. In view of lock
down imposed on 24.03.2020, due to Covid-19 pandemic,
he was unable to arrange the amount. Hence, there was
a delay in preferring this appeal. The delay in filing this
appeal is for the bonafide reasons not with any other
intention. If the delay is not condoned, there would be
injustice to him. On the other hand, if the delay is
12
Crl.A.No.612/2020
condoned, no hardship or prejudice would cause to the
complainant.
10.1) Reasons assigned by the accused to condone
delay of 161 days in preferring this appeal is genuine and
satisfactory. Hon'ble Apex court has laid down in various
decisions that, court shall take liberal approach in
condoning the delay in filing the petitions. In AIR 1988
SC 897 (G.Ramegowda V/s. Special Land Acquisition
Officer, Bengaluru), Hon'ble Apex court pleased to
observe that;
'Sufficient cause' in Section 5 must receive a
liberal construction so as to advance
substantial justice and generally delay in
preferring appeals are required to be
condoned in the interest of justice where no
gross negligence or deliberate inaction or lack
of bonafides is imputable to the party seeking
condonation of the delay. When substantial
justice and technical consideration are pitted
against each other, cause of substantial
justice deserves to be preferred for the other
13
Crl.A.No.612/2020
side cannot claim to have vested right in
injustice being done because of a non-
deliberate delay. It must be grasped that,
judiciary is respected not on account of its
power to legalize injustice on technical
grounds but because it is capable of removing
injustice and is expected to do so.'
In the light of ratio laid down by the Hon'ble Supreme
Court of India and under the facts and circumstances of
the present case, this court opined that, it is just and
proper to condone the delay of 161 days in preferring this
appeal to provide an opportunity to prosecute the appeal.
This interim application deserves to be allowed. Hence,
point No.1 is answered in the Affirmative.
11. POINTS NO.2 to 4:- These points are
interrelated, hence they are taken together for common
discussion in order to avoid repetition of facts and
evidence.
14
Crl.A.No.612/2020
The learned counsel for the accused canvassed in
the written arguments and additional written
arguments that, the complainant has filed complaint
against the accused before the trial court that, he
offered to sell the schedule property and accordingly,
Agreement of Sale dated 15.11.2016 executed by the
between the parties and complainant has paid 10% of
the sale consideration amount to the accused towards
advance amount and agreed to pay the balance
amount of ₹.5,00,000/- at the time of registration. Due
to unavoidable circumstances, sale transaction could
not be completed and cancellation of Agreement dated
10.08.2017 was registered before Sub-Registrar,
Basavanagudi, Bengaluru. Under the cancellation
agreement, has returned the advance sale
consideration by way of cash and ₹.4,00,000/- and
15
Crl.A.No.612/2020
balance ₹.6,00,000/- by way of cheque. On
presentation, cheque was dishonoured, which give
raise cause of action to file the complaint. Before the
commencement of the defence evidence, settlement
arrived, a joint memo dated 14.12.2019 filed by the
parties reporting amicable settlement for ₹.7,25,000/-.
The accused has issued cheque bearing No.145900
dated 30.01.2020 drawn on Syndicate bank for
₹.7,25,000/- and same was received by the
complainant. Present appeal is filed seeking extension
of time to deposit ₹.7,25,000/-, which has been settled
before the Lok Adalath on 14.12.2019. Due to the lock
down, accused was not able to arrange the amount.
Complainant has threatened to take coercive steps by
seeking issuance of F.L.W./N.B.W. before the trial
court. When the trial court has accepted joint memo
16
Crl.A.No.612/2020
filed by both parties, issuance of F.L.W./N.B.W., in the
absence of the award is totally bad in law. Accordingly,
it is sought for setting aside the order by issuing
directions to the trial court to pass fresh award or
issuance of F.L.W./N.B.W. issued by the trial court by
allowing the appeal.
12. The learned counsel for the respondent
vehemently argued that, before the trial court, both
parties have filed joint memo. The learned magistrate
accepted joint memo, but not passed an award. The
accused has clearly admitted the liability. Therefore, it
is necessary to direct the trial court to pass an award
accordingly, to facilitate the complainant to take
suitable steps for recovery of the amount.
17
Crl.A.No.612/2020
13. In the back drop of the rival submissions,
this court has meticulously appreciated complaint
averments, documents placed by the complainant. The
accused has not disputed the transaction and liability
to pay the cheque amount. Under the joint memo dated
14.12.2019, the accused has admitted liability to pay
the cheque amount and agreed to pay an amount of
₹.7,25,000/- against the disputed cheque amount of
₹.6,00,000/-. However, the only grievance of the
accused is that, the trial court has not passed the
award and hence, the complainant is not entitled to
take coercive steps. This contention of the accused is
not acceptable, in view of the settled proposition of
law laid down by the Hon'ble High Court of Karnataka
in a case of Sri. Somashekhar Reddy V/s.Smt.
G.S.Geetha, in WP.No.23519 of 2018 (GM-RES), out
18
Crl.A.No.612/2020
High court has held that, 'depending uon the terms of a
compromise arrived at before lok-adalath it can be
enforced as a Civil Decree or in terms the applicable
provisions of Cr.P.C. including that U/s.431 of Cr.P.C.,
it so provided in a compromise. In the event of default of
a compromise arrived at before the lok-adalath, this
court or trial court can on an application made by the
complainant set-aside the compromise arrived at before
the lok-adalatha, restore the complaint on its file and
proceed with the complaint or enforce the compromise
as per the terms of the compromise including by issuing
of an FLW U/s.431 of the Cr.P.C."
13.1) As such, accused is not entitled to question
the right of the complainant to recover the agreed
amount under the provisions enshrined U/s.431 of
Code of Criminal Procedure.
19
Crl.A.No.612/2020
14. Nevertheless, the certified copy of the order
sheet of the trial court does not reflect issuance of
FLW/NBW against accused person. In the joint memo
dated 14.12.2019, it is stated that, accused has paid
a sum of Rs.7,25,000/- by way of cheque bearing
No.145900 dated 30.01.2020 drawn on Syndicate
Bank. But, from the admissions of the accused
person, it appears that, he has not maintained
sufficient balance in his account to honour the
aforesaid cheque. Therefore, the right very well vests
with the complainant to recover the amount through
procedure known to law.
15. For the reasons stated and discussed on the
above paras, this court opined that, accused has not
made out sufficient grounds to extend the time to pay
the settled amount. Even before this court also, the
20
Crl.A.No.612/2020
accused sought time to deposit the amount, but failed
to do so, which is forthcoming from the order sheet.
There is absolutely no grounds to stay the proposed
order of FLW/NBW to be issued by the trial court. In
that view of the matter, no interference of this court of
appeal is required under the facts and circumstances
of this case. Accordingly, points No.2 to 4 under
consideration are answered in the Negative.
16. POINT NO.5:- In view of findings on the
above points No.2 to 4, this criminal appeal is devoid of
merits and the same is liable to be dismissed. Hence,
this court proceed to pass the following:
ORDER
I.A. U/s.5 of Limitation Act filed by the appellant is allowed.
21Crl.A.No.612/2020 Delay in preferring this appeal is condoned.
This Criminal Appeal U/s.374(3) of Cr.P.C. filed by the appellant is dismissed.
Office is directed to transmit T.C.R. along with certified copy of this Judgment to the trial court, forthwith.
(Dictated to the Judgment Writer directly on computer, typed by her and corrected, signed and then pronounced by me in the open court on this the 1 st day of March, 2023.) (KALPANA M.S.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
22Crl.A.No.612/2020 01.03.2023 23 Crl.A.No.612/2020 Judgment pronounced in the open court. Vide separate judgment ORDER I.A. U/s.5 of Limitation Act filed by the appellant is allowed.
Delay in preferring this appeal is condoned.
This Criminal Appeal U/s.374(3) of Cr.P.C. filed by the appellant is dismissed.
Office is directed to transmit T.C.R. along with certified copy of this Judgment to the trial court, forthwith.
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
24 Crl.A.No.612/2020