Bangalore District Court
Bengaluru vs Bengaluru - 560 095 on 11 October, 2018
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 11th DAY OF OCTOBER, 2018
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.57663/2017
Mr. M.G. Vijaykumar
No.6, Old No.31 and 32, 4th Main,
Vinayakanagar, 'B' Block, Konena Agrahar,
COMPLAINANT Bengaluru
Reptd by his father and General Power of
Attorney Holder - Mr. R. Gangadariah
Mr. Adithya .M
Aged about 32 years,
S/o. Mr. Nabhiraj .M
R/at No.45, 5th Block, Koramangala,
ACCUSED
Bengaluru - 560 095
Also at : D.No.3-5-498, Sindhoor, Kadri
Temple New Road, Bejai, Mangalore - 575004
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused acquitted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.57663/2017
JUDGMENT
The complainant has approached this court through his father-cum-Power of Attorney holder with the complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 r/w Sec.142 of Negotiable Instruments Act, 1881. (herein after referred as N.I. Act)
2. The case of the complainant is that, the complainant is a Colonel in Indian Army and he was intended to purchase a house in Bengaluru. The accused claiming to be the absolute owner of the house property bearing No.45, situated at 4th Cross, 5th Block in Koramangala approached the complainant and offered to sell the said property and entered into Sale Agreement on 17.06.2014 agreeing to sell the said property for a sale consideration of Rs.3,15,00,000/-. The complainant had paid a sum of Rs.1,40,00,000/- at the time of agreement and made several other payments as demanded by the accused and in all had paid total amount of Rs.2,00,00,000/- as advance sale consideration on various dates. After receiving the sale consideration, the accused on one other pretext delayed the execution of sale deed. Finally in the month of April 2016, the accused assured to register the property and complete the sale transaction. When the complainant came forward for registration, the 3 C.C. No.57663/2017 accused evaded the registration stating some lame excuses and finally the accused has agreed to return the entire advance amount. In that regard the accused had issued two cheques bearing No.942404 dtd.01.11.2016 and No.000007 dated 01.12.2016 for Rs.50 lakhs each drawn on HDFC Bank Ltd., Kadri, Mangalore to the complainant towards refund of the advance sale consideration.
3. It is further case of the complainant that the complainant presented the said cheques for encashment through his banker - HDFC Bank, Richmond Road branch, Bengaluru, but the said cheques were returned dishonoured for the reason "funds insufficient" vide memo dated 23.01.2017. Thereafter the complainant got issued legal notice dtd.09.02.2017 by RPAD as well as through speed post to the accused demanding payment of the cheques amount within 15 days from the said notice. The said notice sent by RPAD was served on the accused on 11.02.2017. The notice sent through speed post was returned as "unclaimed". In spite of the service of notice, the accused has not opted to comply with the lawful demand made therein 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 his favour in the interest of justice and equity.
4 C.C. No.57663/20174. After filing of the complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the P.A holder 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 pursuance of the summons issued by this court, the accused has put up his appearance through his counsel and enlarged on bail. Thereafter plea was recorded. The accused has denied the substance of accusation and claimed for trial.
6. At the time of recording the plea the accused had not opted to fie application U/s.145(2) of 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], this case was posted for defence evidence. When the case was posted for defence evidence, the accused has come up with application U/s.145(2) of N.I. Act and the said application was allowed and permission was accorded for cross-examination of CW.1. When the case was posted for cross-examination of CW.1, the 5 C.C. No.57663/2017 complainant has filed application for his substitution in the place of his power of attorney holder to proceed with the matter and accordingly the said application was allowed by this court. Thereafter the complainant himself is examined as PW.1 and got marked 12 documents as per Ex.P1 to P12 and cross-examined in full and closed his evidence. When the case was posted for statement of the accused U/s.313 of Cr.PC, 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 the settlement. The learned counsels 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 their settlement. In view of the settlement, the learned counsel for the accused submitted that the accused has no evidence and thereby evidence of parties concluded.
7. Heard the learned counsels for both parties. Perused the material on record, the points that would arise for consideration are:-
1) Whether the complainant proves that the accused had issued cheques in question in discharge of the legally recoverable debt and committed the offence punishable under Section 138 of N.I. Act?6 C.C. No.57663/2017
2) Whether the application filed U/s.147 of N.I. Act by the parties could be allowed?
3) What Order?
8. 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
9. 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, the complainant in his evidence reiterated the complaint averments in toto. In addition to that he has got marked General Power of Attorney executed by him in favour of his father, two cheques dtd.01.11.2016 and 01.12.2016 issued by the accused, bank endorsement dtd.23.01.2017, office copy of the legal notice dtd.09.02.2017, two postal receipts dtd.09.02.2017, postal acknowledgment for having service of notice on the accused, returned unclaimed speed post envelop, notice contained therein, agreement of sale dtd.17.06.2014, 7 C.C. No.57663/2017 endorsement made in the said agreement, statement of account relating to the account of the complainant maintained in ICICI Bank, State Bank of India and Punjab National Bank as per Ex.P1 to P7, Ex.P7(a), Ex.P8, Ex.P8(a), Ex.P9 to Ex.P12 respectively. The contents of Ex.P1 to P12 are analyzed, they clearly support the version of the complainant. Originally this case was filed by the father of the complainant on the basis of Ex.P1 and thereafter the complainant himself proceed with the matter. The contents of Ex.P2 to P4 i.e two cheques and bank endorsement are analyzed, it is clear that the accused had issued two cheques dtd.01.11.2016, dtd.01.12.2016 for Rs.50 lakhs each drawn on HDFC Bank, Kadri, Mangalore in favour of the complainant and the complainant had presented the same for encashment through HDFC Bank and the same were returned dishonoured for the reason "funds insufficient" by memo dtd.23.01.2017 as contended by the complainant. Further, from the contents of Ex.P5 to P7, Ex.P7(a), it is clear that after dishonour of the cheques as found in Ex.P4, the complainant got issued legal notice dtd.09.02.2017 to the accused by RPAD as well as through speed post and the said notice sent by RPAD was served on the accused on 1.02.2017 as found in Ex.P6 - postal acknowledgment and the notice sent by speed post was returned as "not 8 C.C. No.57663/2017 claimed" on 13.02.2017. The complainant presented the present complaint on 21.03.2017 i.e after lapse of 15 days from the date of service of notice and within 30 days thereafter. Hence on perusal of these aspects, it is clear that the complainant had presented the cheques for encashment within its validity and got issued statutory notice to the accused within statutory time and filed the complaint within the prescribed period. Admittedly, the accused had not complied with the demand made 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 cheques in question. The contents of Ex.P8 i.e sale agreement support the claim of the complainant against the accused. The contents of bank account statement of the complainant also support the claim of the complainant as to payment of the amount as contended by him. Though the accused has denied the substance of acquisition and cross-examined the complainant, subsequently the accused has settled the matter with the complainant and filed application U/s.147 of the N.I. Act seeking permission for compounding the offence in terms of their settlement. In the light of these facts, there are no grounds to disbelieve the case of the complainant as to existence of legally 9 C.C. No.57663/2017 recoverable debt and also issuance of cheques by the accused towards discharge of due amount in favour of the complainant 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.
10. As stated earlier, in this case when the case was posted for statement of the accused U/s.313 of Cr.PC, the parties have settled the matter between them for Rs.2,00,00,000/- (two crores only) towards full and final settlement of the entire due amount. The accused has agreed to pay the settled amount of Rs.2,00,00,000/- two crores only) on or before 15.07.2019 without fail. In view of the settlement, the parties have 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 10 C.C. No.57663/2017 of their free will and consent. It is clear from the contents of the application that the accused has agreed to pay the settled amount of Rs.2,00,00,000/- (two crores only) on or before 15.07.2019 without fail and the accused has also agreed for conviction and recovery of the settled amount as fine in case of default in making payment of the settled amount. 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. It is also pertinent to note that in view of the compounding of the offence the accused has to be acquitted. In this regard this court is being guided by the ruling of the Hon'ble Apex court reported in (2010) I SCC 978 - (K.M.Ibrahim Vs K.P.Mohammed and another). 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.
11 C.C. No.57663/201711. 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 is 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 settled amount of Rs.2,00,00,000/- (two crores only) on or before 15.07.2019 without fail. If the accused fails to pay the said amount as agreed, the complainant is at liberty to recover the said amount from the accused as if fine amount.
The bail bond of the accused and that of his surety stands cancelled.
(Typed to my dictation by the stenographer, directly on computer, corrected, signed and then pronounced by me in the open court on this the 11th day of October, 2018) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 12 C.C. No.57663/2017 ANNEXURE Witnesses examined for the complainant:
PW.1 : Sri. M.G. Vijayakumar
Witnesses examined for the defence:
NIL
Documents marked for the complainant:
Ex.P1 : General Power of Attorney
Ex.P2 & P3 : Two cheques
Ex.P4 : Bank endorsement
Ex.P5 : Legal Notice
Ex.P6 : Postal acknowledgement
Ex.P7 : Returned speed post cover
Ex.P7(a) : Returned legal notice
Ex.P8 : Agreement of Sale
Ex.P9 to P12 : Bank statements
Documents marked for the defence:
NIL
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU