Bangalore District Court
Smt.Jayanthi vs Aged About 45 Years on 18 January, 2022
1 Crl.A.No.931/2018
KABC010135592018
IN THE COURT OF THE LIX ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-60) AT BENGALURU)
Dated this 18th day of January, 2022
-: P R E S E N T :-
Sri.,SADANANDA NAGAPPA NAIK, B.A.L. LL.B.,
LIX ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-60
BENGALURU CITY.
Crl. Appeal No.931/2018
APPELLANT:/ Smt.Jayanthi,
ACCUSED Aged about 45 years,
Sridevi Refreshments
Nagawara, A.C.Post,
Bengaluru.
(By Smt.Sudha, Advocate)
-V/s.-
RESPONDENT:/ Smt.Mallika
COMPLAINANT W/o Jagadish,
aged about 45 years,
R/at No.2A, 10th Main,
4th Block, Rajajinagar,
Bengaluru.
(By Sri S.G.Venkatachalapathy,
Advocate )
2 Crl.A.No.931/2018
JUDGMENT
Appellant has filed this appeal U/s.374(3) of Code of Criminal Procedure 1908 (Cr.P.C) being aggrieved by the Judgment of conviction and order of sentence passed in C.C. No.14743/2016 dated 06.04.2018 on the file of XIII ACMM, Bengaluru.
2. Parties to this appeal shall be referred to as per their ranking before the trial court for the purpose of convenience and for better appreciation of their contentions.
3. In the memorandum of appeal, appellant/accused has submitted that, judgment, conviction and sentence passed by the trial Court is perverse, illegal, unlawful and bad in law and liable to be set aside. The trial Court placed much reliance upon the uncorroborated evidence of PW1. The appellant and respondent have settled their dispute by filing Joint Memo and the disputed settled for Rs.4,50,000/- and as per the terms and conditions of the joint memo, the appellant paid Rs.1,00,000/- and the balance amount required to be paid within December, 2018. In the meantime, the trial Court concluded the case and passed the impugned judgment. For the aforesaid reasons, appellant has prayed to interfere into the impugned judgment and order and set aside the same.
4. Along with memorandum of appeal, appellant produced certified copy of order sheet, joint memo and impugned judgment of conviction and order of sentence.
3 Crl.A.No.931/20185. Respondent appeared through counsel. Learned counsel for the appellant and respondent submitted their written arguments. Perused the records. T.C.Rs were called for reference in this appeal. Now, following are points arising for determination :
1. Whether in the light of evidence and material brought before the Court, trial court is justified in convicting accused/ appellant for the offence punishable under Section 138 of Negotiable Instrument Act (N.I.Act) and sentencing accused for the said offence ?
2. Whether interference of this Court is necessitated ?
3. What order ?
6. It is answered for the aforesaid points as under :-
Point No.1: In the affirmative Point No.2: In the negative Point No.3: As per final order below, for the following:-
REASONS
7. POINT NOs. 1 and 2 :- These points are taken together to avoid repeated discussions.
8. The case of the complainant in brief is that, herself and the accused were known to each other from several years. Appellant/accused has approached and requested her for financial help for her business purpose and other necessities and the complainant lent loan of Rs.15,00,000/- in favour of the accused on 27.12.2012 and 4 Crl.A.No.931/2018 08.01.2013 through bank and by way of cash and the accused agreed to repay the said loan amount within six months, but failed to discharge the loan amount. When she demanded for the repayment, accused issued a cheque bearing No.065252 dated: 20.04.2016 for Rs.15,00,000/- drawn on Bank of India, Bengaluru Main Branch in favour of the complainant towards discharge of the said loan amount. When the complainant presented the said cheque for encashment through her banker i.e., Andhra Bank, Rajajinagar Branch, Bengaluru it was returned dishonoured for the reason 'Account closed' vide endorsement dated 22.04.2016. Thereafter complainant got issued legal notice on 22.04.2016 to the accused through RPAD calling upon her to pay the cheque amount to her within 15 days from the date of receipt of the said legal notice. The notice was duly served on the accused and in spite of the receipt of notice, the accused has failed to pay the cheque amount to her. To take action against the accused for offence punishable under Section 138 of NI Act, complainant has filed complaint under Section 200 of Cr.P.C.
9. Perused entire order sheets, complaint filed under Section 200 of Cr.P.C., for the offence punishable under Section 138 of N.I Act, sworn statement affidavit of the complainant, plea of accusation, examination-in-chief evidence of P.W.1 by way of affidavit, ingredients of documents at Ex.P.1 to Ex.P10. Accused deposited 10% of the cheque amount as ordered under Section 143A of N.I.Act i.e., Rs.1,60,000/- vide D.D.No.992663 dated 13.6.2018 endorsed by the Accounts branch of the C.M.M. Court within sixty days 5 Crl.A.No.931/2018 from the date of order and led evidence as DW 1. There is no procedural defect of any nature while conducting trial relating to private complaint registered for the offence punishable under Section138 of N.I Act.
10. Learned counsel for the appellant vehemently argued that after conclusion of trial and when the case posted for arguments, both the appellant and respondent due to the intervention of elders and well-wishers settled their dispute by filing a joint memo and the dispute was settled for Rs.4,50,000/-. As per the terms and conditions of the Joint Memo, the appellant paid Rs.1,00,000/- and the balance amount of Rs.3,50,000/- required to be within December 2018 and in the meantime, the trial Court concluded the case bypassing the joint memo passed the impugned judgment and order of sentence based on the joint memo. The same is bad in law. Hence, the impugned judgment is totally perverse, illegal, unlawful and bad in law and prays to set aside the impugned judgment and order of sentence by allowing the appeal.
11. Learned counsel for the respondent vehemently argued that the accused has not complied the conditions of the joint memo. Though the accused availed the loan of Rs.15,00,000/-, he has not repaid the loan amount and issued the cheque in question which was dishonoured. Since the accused failed to pay the installments as agreed in joint memo, the trial Court terminated the settlement process and posted the case for hearing arguments on main and rightly 6 Crl.A.No.931/2018 passed the judgment and order of sentence. Hence, prayed to dismiss the appeal.
12. At this juncture, it is just and necessary to narrate the Joint Memo filed by both the parties to the complaint on 09.11.2017.
JOINT MEMO The parties herein most respectfully submit as under:-
1. That the complainant has filed above case against the accused for the offence punishable under section 138 of NI Act and alleged that the accused have issued cheque for Rs.15,00,000/- and same not encashed.
2. That the parties herein submit that at the intervention of the elders and friends of both the parties, the parties here has mutually agreed to settle the matter amicably as stated in the paragraphs below.
3. That the complainant agreed receive Rs.4,50,000/- (Rupees four lakhs and fifty thousand only) as full and final settlement towards cheque No.065252 dated 20.4.2016 drawn on Bank of India which is marked as Ex.P1 in the above case.
4. The accused have agreed to pay aforesaid amount Rs.4,50,000/- (Rupees Four Lakhs and Fifty thousand only) within one year six months and the complainant has also agreed to receive the said sum of Rs.4,50,000/- as full and final settlement as follows:-
i. On 13.12.2017 the accused agreed to pay Rs.1,00,000/- ii. On 12.1.2018 the accused agreed to pay Rs.50,000/- iii. On 13.4.2018 the accused agreed to pay Rs.50,000/- iv. On 13.6.2018 the accused agreed to pay Rs.50,000/- 7 Crl.A.No.931/2018 v. On 11.8.2018 the accused agreed to pay Rs.50,000/- vi. On 12.10.2018 the accused agreed to pay Rs.50,000/-
vii) On 13.12.2018 the accused agreed to pay Rs.1,00,000/-
5. The accused undertake to pay the aforesaid amount either by depositing the same before this Hon'ble Court or deposit with complainant's Bank Account.
6. It is further agreed between the parties that other than the aforesaid cheque, they have not other financial liabilities with each other and they have no claims with each other.
13. Further, it reveals from the order sheet maintained by the trial Court that the contents of joint memo signed by both the parties and their respective counsels read over and explained to complainant and accused. Both of them have agreed for the terms and conditions of the joint memo. The trial Court instead of considering the joint memo, referred the matter to Lok-Adalath. In the Lok-Adalath, when the case was called out both the complainant and accused were absent and hence the case was returned to Regular Court. The trial Court has committed error in not considering the joint memo filed by both the parties duly signed by their respective counsels also. Therefore, it is evident that both the complainant and the accused have thought that the matter has been settled between them and hence they have not appeared before the Lok-Adalath. Therefore, the question of issuing NBW to accused does not arise. However, on 15.02.2018, the accused appeared before the Court and paid Rs.60,000/- which was acknowledged by the complainant. The trial Court has failed 8 Crl.A.No.931/2018 to consider that there is no condition in the joint memo as to payment of entire cheque amount in case of default of payment of instrument amount by the accused, the accused is liable to pay entire cheque amount. Under the Joint Memo, the last installment had required to be paid by the accused on 13.12.2018. However, the impugned judgment is passed on 06.04.2018 which is prior to the last date of payment. The trial Court ought to have waited until 6.4.2018 and proceed on joint memo as per law. Hence, the impugned judgment is bad in law.
14. Further, the learned counsel for the respondent submits that the appellant has violated the orders of this Court and he has not remitted the 10% of the fine amount. I have perused the order sheet of the trial Court in C.C.No.14743/2016. The Accounts branch has made an endorsement dated 13.06.2021 with regard to receipt of Rs.1,60,000/- by way of Demand draft bearing No.992663 drawn on State Bank of India on 13.06.2018 and Q. receipt No.4258/2018 was issued. Therefore, the appellant has complied the orders of this Court and hence the arguments of the learned counsel for the respondent holds no water.
15. In the present case, the defence set up by the accused is that the judgment and order of conviction passed by the trial Court is perverse since the matter was settled between the parties and without providing opportunity, the impugned judgment and order of conviction was passed by the trial Court. When the complainant and accused 9 Crl.A.No.931/2018 compromised their dispute, Trial Court ought not have referred the dispute to the Lok-Adalath. The Trial Court has committed serious error in referring the dispute before the Lok-Adalath. Hence, the judgment and order of conviction passed by the trial Court is bad in law. Hence, from this point of view, the judgment and order of conviction passed by the trial Court is required to be interfered and to direct the trial Court to consider the joint memo filed by both the parties in accordance with law. Accordingly, point No.1 is answered in the negative and point No.2 is answered in the affirmative.
15. POINT NO.3 :- In view of findings on the above point Nos.1 and 2, this criminal appeal is liable to be allowed by setting aside impugned judgment of conviction and order of sentence. Hence, following order is made:
ORDER Invoking provisions under Section 386 of Cr.P.C., this Criminal Appeal filed U/s.374(3) of Cr.P.C. is allowed.
Consequently, impugned judgment of conviction and order of sentence in C.C. No.14743/2016 dated 06.04.2018 on the file of XIII ACMM, Bengaluru is hereby set aside.
Acting under Section 386(b)(i) of Cr.P.C., the matter is remanded to the trial court for considering the joint memo filed by both the parties dated 09.11.2017 in accordance with law.10 Crl.A.No.931/2018
Both parties are directed to appear before the court below on 16.02.2022 without waiting for notice.
The court below shall take the matter on 11.02.2022 and to proceed with the matter in accordance with law.
Send the copy of the Judgment along with the records to the lower court.
(Dictated to the Judgment writer, transcribed and typed by him, corrected, signed and then pronounced by me in the open court on this 18th day of January, 2022.) Sd/-18.01.2022 (Sadananda Nagappa Naik) LIX ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-60, BENGALURU CITY.