Bangalore District Court
E.S.I. Corporation vs Proprietor on 16 May, 2022
IN THE COURT OF XXXVIII ADDL.CHIEF METROPPOLITAN
MAGISTRATE, BENGALULRU
Present : Sri. P. Shivaraj,
B.Com. LL.B.
XXXVIII A.C.M.M Bengaluru
Dated this the 16th day of May - 2022
C.C.NO: 6026/2018
COMPLAINANT: E.S.I. Corporation,
Rep. Sri.S.Chandrashekar Social Security
Officer,
No.23, 9th B and 10th C Main,
BTM Ring Road,
Opp. I.O.C. Petrol Bunk
Bengaluru - 560029.
(Sri. K.Krishnappa,Advocate.)
// VS //
[
Sri. K.K.Kumar,
ACCUSED:
Proprietor,
M/s.Bright Management Service, No.8,
Kamala Nilaya, I Main, 1st Cross,
Brindavananagar, Thavarekere,
Bangalore560 029
also at:
Santhosh Nilaya, 5th Main, 4th Cross,
Krishnamurthy Layout, Balajinagar,
Bangalore560 029..
(Sri. R.G.N Associates, Advocate.)
Offence : U/s/ 138 of N.I Act of 1881.
Plea of accused : Pleaded not guilty.
Final Order : Accused is convicted.
Date of judgment : 16/05/022
(P. SHIVARAJ)
XXXVIII A.C.M.M.
Bengaluru.
C.C.No.6026/2018
: J U D G E M E N T :
The complainant is a Government Organization and
is a statutory body constituted u/S.3 of the Employees
State Insurance Act 1948 and its Social Security Officer
Mr.S.Chandrasekar has filed private complaint U/s 200
of Cr.P.C. against the accused alleging that, accused has
committed the offence punishable under section 138 of
Negotiable Instrument Act, 1881( For short N.I.Act,1881).
2. Complainant case is as follows:
Complainant is a Government Organization. Accused
is the Proprietor of M/s.Bright Management Service and it
is security service establishment covered under the
provisions of Employees State Insurance Act, 1948.
Accused has failed to pay the contribution amount of
Rs.1,38,353/ payable to complainant as per Section 40
of ESI Act. Hence, complainant has issued recovery
certificate u/S.45 of the said Act, vide claim No.C19 on
20/5/2017 for Rs.1,38,353/. In order to pay the said
contribution amount, accused has issued cheque bearing
No.267359 dated 18/12/2017 for Rs.41,500/ in favour
of complainant which was drawn on Vijaya Bank,
Bangalore Branch.
3. As per the instructions of the accused
complainant firm presented the aforesaid cheque for
encashment through its banker. The aforesaid cheque
was returned dishonoured with an endorsement "Funds
C.C.No.6026/2018
Insufficient", to that effect, complainant firm received the
cheque return memo from its banker on 26/12/2017.
Complainant firm informed the aforesaid fact to the
accused and it has issued legal notice by way of RPAD to
the accused on 11/01/2018. The RPAD returned
undelivered on 25/1/2018. Further, accused failed to
repay the cheque amount. Complainant alleged that,
accused has intentionally not maintained the sufficient
amount in his bank account to honour the cheque.
Inasmuch, accused has committed the offence punishable
under section 138 of N.I. Act. On the aforesaid allegations,
the complainant company approached this court and
prays this court to punish the accused and to award the
compensation.
4. Originally the private complaint was filed before
Hon'ble XXVCMM court Bengaluru. The learned presiding
officer of that court, took the cognizance for the offence
punishable U/s 138 of N.I.Act and recorded. On finding
primafacie case, process was issued to the accused.
Later as per special notification No. ADM/1/5/2020
dt.26.05.2020, case is transferred to this court.
5. After service of the summons to the accused, he
appeared before this court through his counsel, and he
got released on bail. In compliance with provision of
section of 207 of Cr.P.C. papers of the prosecution were
supplied to the accused. The substance of the accusation
C.C.No.6026/2018
is readout to accused, in the language known to him, he
pledged not guilty and submit that he is having defense to
make.
6. In order to prove the guilty of the accused, the
present Social Security Officer of the complainant
organisation Sri.Ashok S/o.Karmbir Singh has filed
examination in chief Affidavit and he has relied on 9
documents as per Ex.P.1 to Ex.P.9. The accused has not
chosen to file IA under Sec.145(2) of N.I. Act. Inasmuch,
accused statement is recorded as per Sec.313 of Cr.P.C.
He has denied the same and submit that, he is having
evidence to lead.
7. Later, when the case is set down for defence
evidence complainant and accused have settled the
matter out side the court and they have filed joint memo,
reporting their settlement, stating that, they have settled
the matter out side the court for Rs.46,500/ and accused
has agreed to pay the settled amount on or before i.e.,
16/5/2022.
8. I have heard the arguments and perused the
materials available on record.
9. The following points that arise for my
determination:
C.C.No.6026/2018
:POINTS:
1. Whether the complainant
organization and accused have
voluntarily settled the cheque
amount as per the terms and
conditions of their Joint Memo.?
2. What Order?
10. After carefully going through the materials
available on record and taking into consideration of facts
and circumstances of the case, my finding to the above
points are as follows:
Point No.1 : In the Affirmative
Point No.2 : As per final order, for the
following:
REASONS
11. Point No.1: PW1 being the authorized person
of the complainant orgnization, he reiterated the
complaint averments in his examinationinchief
affidavit.
12. when case is set down for defence evidence,
complainant and accused have voluntarily compromised
and settled the matter and they have filed joint memo
reporting their settlement that they have settled the case
for Rs.46,500/ and accused has agreed to pay the
settled amount on 16/5/2022 and they prays this court
to pass the judgment as per their settlement.
C.C.No.6026/2018
13. In view of the joint memo filed by the parties, it
is evident that, accused has admitted the issuance of
cheque to the complainant organization and his signature
there on, Further, he has admitted the alleged
transaction with the complainant organization and his
liability towards complainant organization. In other
words accused has admitted the entire case and
documents of the complainant organization in toto.
Further, in the joint memo they have voluntarily reported
that, they have settled the matter for Rs.46,500/.
Accused has agreed to pay the settled amount on
16/5/2022.
14. The aforesaid fact is consented/acknowledge by
the complainant organization. It is also true that,
complainant organization has reserved it's right, to
recover the settled amount as per law, in case if there is
any default from the accused. The said fact is also
consented by the accused.
15. Apparently, accused has admitted the entire
case of the complainant organization and they have
reported their settlement by filing joint memo, inasmuch,
there is no material on record to disbelieve the reported
settlement by the parties and it is deserved to be
accepted. In view of the joint memo filed by complainant
organization and accused, it is crystal clear that accused
has admitted his guilt as alleged by the complainant
C.C.No.6026/2018
organization. Further more, complainant organization
and accused have agreed for their own settlement and
they have taken initiative with repayment schedule for
the settled amount and they prays this court to pass the
judgment accordingly by awarding the fine amount as
compensation to the complainant organization for the
enforcement of their settlement, such being the case and
to meet the ends of justice and equity, and by considering
the admitted settlement. as reported by the parties as per
their join memo, I am answering this point in the
Affirmative.
16. POINT NO.2: For the foregoing reason and
discussion, on point No.1, I proceed to pass the following:
ORDER
Exercising the power conferred U/Sec.255(2) of Cr.P.C. accused is hereby convicted for the offence punishable U/Sec. 138 of N.I.Act1881. Accused is sentenced to pay the fine amount of Rs.46,500/ on or before 16/05/2022.
In default, accused shall under go simple imprisonment for a period of six months.
C.C.No.6026/2018 The entire fine amount shall be paid to the complainant organization as compensation as per section 357 of Cr.P.C.
The reported joint memo shall form part of the record.
The bail bond and surety bond of accused shall continue till he pays the agreed settled amount as per the joint memo.
Office is directed to supply the free copy of this judgment to the accused forthwith.
(Dictated to the Stenographer directly on computer, same was corrected by me and then pronounced by me in the open court on 16th day of May 2022).
(P. SHIVARAJ) XXXVIII A.C.M.M. Bengaluru.
C.C.No.6026/2018 ANNEXURE:
1) List of Witnesses Examined on behalf of the Complainant organization:
PW.1 : Sri.Ashok.
2) List of exhibits marked on behalf of the Complainant company:
Ex.P.1 : C/c of Notification dt.8/11/2021 Ex.P.2 : Copy of Authorization letter. Ex.P.3 : Copy of Appointment letter. Ex.P.4 : Original cheque. Ex.P.5 : Cheque return memo. Ex.P.6 : Notice given to accused. Ex.P.7,8 : Unserviced RPAD letters. Ex.P.9 : Copy of Employers Registration form.
4) List of Witnesses Examined on behalf of the Accused: NIL
4) List of exhibits marked on behalf of the Accused: NIL (P. SHIVARAJ) XXXVIII A.C.M.M. Bengaluru.
C.C.No.6026/2018 (Judgment pronounced in Open Court vide separate order ) ORDER Exercising the power conferred U/Sec.255(2) of Cr.P.C. accused is hereby convicted for the offence punishable U/Sec. 138 of N.I.Act1881.
Accused is sentenced to pay the fine amount of Rs.46,500/ on or before 16/05/2022.
In default, accused shall under go simple imprisonment for a period of six months.
The entire fine amount shall be paid to the complainant organization as compensation as per section 357 of Cr.P.C.
The reported joint memo shall form part of the record.
The bail bond and surety bond of accused shall continue till he pays the agreed settled amount as per the joint memo.
Office is directed to supply the free copy of this judgment to the accused forthwith.
(P. SHIVARAJ) XXXVIII A.C.M.M. Bengaluru.
C.C.No.6026/2018 C.C.No.6026/2018