Bangalore District Court
M/S.Ue Development India Pvt Ltd vs M/S.Ansal Properties & on 1 July, 2022
IN THE COURT OF THE XXV ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE
Dated this the 1st day of July 2022
Present:
Present : Smt.Sujata Sidagouda Patil,
B.SC.,LL.B.
XXV Addl. Chief Metropolitan Magistrate,
Bangalore.
C.C.No.27679/2021
Complainant : M/s.UE Development India Pvt Ltd,
A company incorporated under the
Companies Act, 1956,
Having its registered office at
7th floor, Pride Hulkul , Opp.Passport
Seva Kendra,
Lalbagh Main road,
Bangalore 560 027.
Rep. By its Authorized representative
Mr.Samir Balkrishna Pansare.
(By Sri MVS Advocate )
V/s
Accused : 1. M/s.Ansal Properties &
Infrastructure Ltd.,
A company incorporated under the
Companies Act,1956 having its
registered office at Ansal Bhavan , 16
Kasturba, Gandhi Marg, New Delhi
110 001.
Rep. By its Chairman
Mr.Sushil Kumar Ansal.
2. Sushil Ansal,
Chairman
M/s.Ansal Properties & Infrastructure
Ltd.,
Ansal Bhavan, 16, Kasturba, Gandhi
Marg, New Delhi 110 001.
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3. Pranav Ansal
Vice Chairman
M/s.Ansal Properties & Infrastructure
Ltd.,
Ansal Bhavan, 16, Kasturba, Gandhi
Marg, New Delhi 110 001.
4. Yogesh Gauba ,
Ansal Bhavan, 16, Kasturba, Gandhi
Marg, New Delhi 110 001.
5. Satish Chandra ,
Ansal Bhavan, 16, Kasturba, Gandhi
Marg, New Delhi 110 001.
6. Jagath Chandra
Ansal Bhavan, 16, Kasturba, Gandhi
Marg, New Delhi 110 001.
7. Bupesh Chand Gupta
Ansal Bhavan, 16, Kasturba, Gandhi
Marg, New Delhi 110 001.
8. Prashanth Kumar
Ansal Bhavan, 16, Kasturba, Gandhi
Marg, New Delhi 110 001.
9. Abdul Sami
General Manager & Company
Secretary
Ansal Bhavan, 16, Kasturba, Gandhi
Marg, New Delhi 110 001.
(By Sri AM Advocate )
Plea of accused: Pleaded not guilty.
Final Order: Accused Nos.1, 2, 3, 4, 5, 6, 8 &9 are
convicted
( Accused No.7 reported dead )
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C.C.No.27679/2021
Date of judgment : 01.07.2022.
JUDGMENT
The complainant filed the complaint under Sec.200 Cr.P.C. against the accused for the offence punishable under Sec.138 Negotiable Instruments Act (For short N.I.Act).
2. The brief facts of the complainant case is as under:
The complainant is one of India premiere construction companies. The complainant has executed several projects for National Highway Authority of India and Landmark infrastructure projects for private sector. The complainant also provides project management services, operation and maintenance services and leases its equipments for construction companies.
3. M/s.Ansal API Infrastructure Limited is a wholly owned subsidiary of 1st accused company. The complainant and M/s.UEM (Mauritius ) Co.Ltd, on one hand and 1 st accused on the other incorporated M/s.UEM Builders - Ansal API Contracts Private Limited. The complainant and M/s.UEM (Mauritius ) Co.Ltd, together had shareholding of 60% and the 1 st accused owned remaining 40% share in M/s.UEM Builders Ansal API Contracts Private Limited.
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4. M/s.Ansal API infrastructure limited had entered into construction agreement dt.22.5.2012 with M/s.UEM Builders Ansal API Contracts Private Limited for construction of Sushant Golf City in Lucknow. M/s.UEM Builders Ansal API Contracts Private Limited entered into an Equipment Lease Agreement dt.22.11.2008 with the complainant under which the equipments of the complainant were leased. M/s.UEM Builders Ansal API Contracts Private Limited had also entered into a Project Management Services Agreement dt.22.11.2008 with the complainant.
5. M/s. Ansal API Infrastructure Limited defaulted in making payment of Rs.13,58,00,000/ to M/s.UEM Builders Ansal API Contracts Private Limited. Hence, M/s.UEM Builders Ansal API Contracts Private Limited was constraint to initiate insolvency petitions bearing No.C.P.(IB) NO.804 of 2018 against M/s.Ansal API Infrastructure Limited and C.P.(IB) NO.823 of 2018 against the 1st accused before the National Company Law Tribunal,Delhi. During the pendency of insolvency petitions, the 1st accused and M/s.Ansal API Infrastructure limited offered to settle the outstanding debt of Rs.13,50,00,000/ by paying a sum of Rs.6,00,00,000/. Pursuant to the offer, M/s.Ansal API Infrastructure Limited, M/s.UEM Builders Ansal API Contracts 5 C.C.No.27679/2021 Private Limited and the complainant entered into a Settlement Agreement dt.5.03.2019 and the insolvency petitions filed against M/s.Ansal API Infrastructure Limited and 1st Accused were withdrawn pursuant to execution of Settlement Agreement.
6. As per the terms of Settlement Agreement, Rs.6 Crores was to be paid by M/s.Ansal API Infrastructure limited in six quarterly payment of Rs.1,00,00,000/ through cheques issued by the 1st accused. The 1st accused issued a cheque bearing No.53075 drawn on Oriental Bank of Commerce, Mahatma Gandhi Marg, Hazrat Ganj, Lucknow 226 001 dt.25.04.2020 for a sum of Rs.30,00,000/ as per the settlement agreement. The complainant presented said cheque for realisation through his banker i.e State Bank of India, HSR Layout , Bangalore for encashment and the same returned dishonored for the reason "Payment Stopped by the Drawer". On receipt of said intimation, the complainant got issued legal notice dt.25.05.2020 to pay the outstanding amount. Despite of service of notice, the accused failed to pay the outstanding amount to the complainant. Therefore, the complainant was constrained to file the complaint against the accused. Hence, this complaint..
7. After filing of the complaint, cognizance taken and recorded the sworn statement of the complainant. The complainant 6 C.C.No.27679/2021 has complied all the statutory requirements under Sec.138 of N.I.Act. On the other hand, accused persons have not complied with the demand notice issued by the complainant company nor made the payment within the stipulated period. Thereafter, the case is registered against the accused persons and summons issued. Pursuant to issuance of summons, the accused persons appeared along with their Counsel. Further the copies of the papers were furnished to the accused persons as contemplated u/s.207 Cr.P.C. Subsequently, the complainant and the accused appeared before the court and filed a Joint Memo. The parties submitted before the court that they agree and abide by the terms of joint memo. Both the side prayed to pass judgment taking into consideration the joint memo filed by the parties.
8. Heard arguments and perused the material on record.
9. On the basis of the contents of the complaint the following points arise for my consideration. :
1. Whether both the complainant and the accused have settled the dispute by way of filing joint memo for a sum of Rs.30,00,000/. ?
2. What Order?7
C.C.No.27679/2021
10. My findings to the above points are as follows:
Point No.1: In the Affirmative. PointNo.2 : As per final order for the following :
REASONS
11.Point No.1: The complainant has filed the complaint alleging that the accused persons have committed an offence punishable u/s.138 Negotiable Instrument Act. After recording the sworn statement , the complainant and the accused appeared through their counsel and filed joint memo on 21.06.2022. Under the joint memo, the matter has been settled between the parties for a sum of Rs.2,10,00,000/ with respect to all the cheques which have been issued by Accused No.1 company at the time of entering into settlement agreement dt.05.03.2019. Out of which the accused have previously made payment of Rs.1,10,00,000/. On 21.06.2022 the accused persons paid balance amount of Rs.1,00,00,000/ through DD No.509957 for Rs.30 Lakhs, 510008 for Rs.30 Lakhs and 580734 for Rs.40 Lakhs. As per the joint memo, the matter has been settled between the parties and the accused have paid sum of Rs.1,00,00,000/ towards full and final 8 C.C.No.27679/2021 settlement to the complainant and the complainant acknowledges the same in the joint memo.
12. Despite it, the defence counsel has filed memo with authorized copy of the resolution stating that the representative of the accused No.1 company has been changed and present representative of the accused no.1 company appeared personally and entered into settlement process. After perusal of documents submitted by the defence counsel it is legally presumed that the said representative of the accused No.1 company has authority to enter into settlement process.
13. In this case, it is to be considered by the court that whether the mandatory requirement as mentioned u/s.138 Negotiable Instrument Act has been complied with or not. The cheque is dt.25.04.2020 it was presented for encashment and the endorsement received on 28.04.2020 . That on 25.05.2020 the legal notice is issued through RPAD. The complaint is filed on 14.07.2020. It is evident that the cheque was presented for encashment within the valid time. Notice demanding the cheque amount and filing of the complaint before the court after service of notice are within the period specified. Therefore, from the joint memo it is crystal clear that the accused persons have not paid the cheque amount.
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14. Upon appreciation of the materials , this court is of the opinion that the accused persons failed to prove that they have not issued the cheque for legally enforceable debt On the contrary, the complainant has proved that the accused have issued the cheque in question towards discharge of legally enforceable debt. When the said cheque was presented the same has been dishonored. Hence in this regard a notice has been issued against the accused persons. Despite service of notice, the accused have not paid the cheque amount. Hence, the court is of the opinion that the complainant has proved that the accused persons have committed an offence punishable u/s.138 Negotiable Instrument Act. Hence, Point No.1 is answered in the Affirmative.
15 . Point No.2 : IN view of the discussion made supra, the court is of the opinion that the complainant has proved that the accused persons have committed an offence punishable u/s.138 Negotiable Instrument Act . The joint memo has been filed by the complainant and the accused persons before this court. Further both the parties i.e the complainant and the accused persons have consented to pass the judgment for payment of agreed amount as per the joint memo as compensation to the complainant. The complainant and the accused persons themselves have come forward with mode of repayment of the loan amount and 10 C.C.No.27679/2021 discharged the legal liability by making payment of settled amount. Hence, in view of this I proceed to pass the following :
ORDER Acting u/s.264 Cr.P.C , the accused No.1 to 6, 8 & 9 are hereby convicted for the offence punishable u/s.138 Negotiable Instrument Act and accused are sentenced to pay fine of Rs.2,10,00,000/ .
The fine amount shall be paid to the complainant as compensation u/s.357 of Cr.P.C.
The contents of them is part and parcel of the record as accused have made payment of entire amount towards full and final settlement.
The office is hereby directed to supply free copy of the judgment to the accused .
(Dictated to the Stenographer directly on the computer, typed by her , corrected and signed then pronounced by me in the open court on this the 1st day of July , 2022 ).
(SUJATA SIDAGOUDA PATIL) XXV A.C.M.M., BANGALORE.11
C.C.No.27679/2021 ANNEXURE LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
Nil LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Nil LIST OF WITNESSES EXAMINED FOR THE ACCUSED: Nil LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
Nil (SUJATA SIDAGOUDA PATIL) XXV A.C.M.M., BANGALORE.