Bangalore District Court
Sri. M.T.Venkatashiva Reddy vs Sri. N.Narayana Swamy on 11 January, 2021
CC No.27906/2015
1
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 11th day of January, 2021
Present: SRI.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.27906/2015
Complainant : Sri. M.T.Venkatashiva Reddy,
@ M.T.V. Reddy,
S/o. Thimmi Reddy,
Aged about 64 years,
Retired Chief Manager, S.B.M.,
Residing at E1/16, 1st Cross,
Syndicate Bank Colony,
Bannerghatta Road,
Bangalore 560 076.
(By by Sri. I.V.Ramananda., Adv.,)
Vs
Accused : Sri. N.Narayana Swamy,
S/o. Nanjappa,
Aged about 50 years,
Prop: Anjinadri Estates,
Real Estate Business,
No.765, 19th Cross, 15th Main,
'A' Block, Sahakarnagar,
Bellary Road,
Bengaluru.
(Rep. by Sri. Lokesh K.M, Adv.)
CC No.27906/2015
2
Case instituted : 21.11.2015
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 11.1.2021
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable U/sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the accused being a property developer and being known to him since several years, approached him and requested for a hand loan of Rs.35 Lakhs in the month of June 2013, as he required the same urgently for his business and also towards expenses for obtaining denotification of some property which he is owning at Arkavathi layout at Bangalore and promised him that, he would return the said amount within six months and on the said request and promise, he paid a sum of Rs.35 Lakhs to the accused on 26.6.2013 and on the date of borrowing the said amount, the accused has CC No.27906/2015 3 executed an On Demand Promissory Note and also a Loan Agreement dt: 26.6.2013 in his favour and has also deposited original documents such as Katha Certificate in respect of the property bearing site No.19, Yelahanka Municipal Katha No.19/19, situated at Kogilu village, Yelahanka Hobli, Bangalore North Taluk, owned by him. The complainant further contends that, towards repayment of the said amount, the accused has issued a cheque bearing No.135159, for Rs.35 Lakhs dt:25.3.2015 drawn on Bank of India, Sahakara Nagar Branch, Bengaluru in his favour and as the accused was not able to adjust the said amount, requested him to return the said cheque and after taking back the said cheque, the accused issued another cheque dt: 30.6.2015 bearing No.066361 for the said loan amount of Rs.35 Lakhs drawn on Bank of India, Sahakaranagar Branch, Bengaluru in his favour and as per the request of the accused, he presented the said cheque for encashment through his banker, the same came to be returned dishonoured with endorsement as "Account Closed" dt:
25.9.2015, after return of the said dishonoured cheque, he got issued legal notice dt: 8.10.2015 to the CC No.27906/2015 4 accused demanding payment of the cheque amount of Rs.35 Lakhs and even after receiving the said ntoice, the accused has failed to repay the cheque amount.
Hence the present case is filed by the complainant against the accused praying that the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
3. Before issuing process against the accused, the Complainant is examined as PW.1 and he has filed his affidavitinlieu of sworn statement, in which, he has reiterated the averments of the complaint and he has produced original documents.
4. Primafacie case has been made out against the accused and summons was issued against the accused in turn he has appeared before the court and got enlarged on bail.
5. The complainant himself examined as PW.1 and he has filed his affidavit in lieu of his examination inchief and in support of his evidence has relied upon the documentary evidence as per Ex.P.1 to P.24 , i.e., Original Cheque dated: 30.6.2015 as per Ex.P.1, the CC No.27906/2015 5 signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), two Bank Memos as per Ex.P.2 and P.3 respectively, the office copy of the Legal Notice as per Ex.P.4, postal acknowledgement as per Ex.P.5, the Pronote and Consideration Receipt as per Ex.P.6 signatures of the accused on the said pronote as per Ex.P.6(a) and 6(b), Loan Agreement as per Ex.P.7, signatures of the accused on Ex.P.7 as per Ex.P.7(a) and 7(b), Cancellation of Sale Deed as per Ex.P.8, M.R. Extract as per Ex.P.9, Pahani Extract as per Ex.P.10, Statement of Accounts as per Ex.P.11, Certified copy of the sale deed dt: 21.8.2008 as per Ex.P.12, Lease Agreement dt: 23.2.2012 as per Ex.P.13, certified copy of the sale deed dt: 13.6.2013 as per Ex.P.14, certified copy of the Absolute sale deed dt: 29.10.2008 is as per Ex.P.15, Statement of Accounts for the period from 1.4.2011 to 31.3.2012 as per Ex.P.16, Statements of accounts for the period from 1.4.2012 to 31.3.2013 as per Ex.P.17, Statement of Accounts for the period from 1.4.2013 to 31.3.2014 as per Ex.P.18, Complaint of CC No.21925/15, certified copies of the Notice, Reply Notice, Rejoinder Notice are as per Ex.P19 to P.22 CC No.27906/2015 6 respectively, certified copy of the Joint memo as per Ex.P.23, certified copy of the Release Deed as per Ex.P.24.
6. In view of the principles of law laid down and as per the directions of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the accused, he intended to set out his defence, the case was posted for complainant evidence.
7. The accused himself examined as DW.1 by filing his affidavit in lieu of his examinationinchief and on his behalf he has produced the documents i.e. Original Handwritten Personal Notice dt: 11.7.2015 as per Ex.D.1, certified copy of the Reply Notice dt:
23.7.2015 as per Ex.D.2, certified copy of the Rejoinder dt: 10.8.2015 as per Ex.D.3, certified copies of the Order sheet of CC No.196/2009, FIR Copy as per Ex.D.4 and D.5 respectively.
8. It is relevant here to mention that, when the case is posted for arguments and after filing the CC No.27906/2015 7 written argument, thereafter the complainant and the accused by representing by their respective counsels have filed Joint Memo before the court on 05.01.2021 and both sides prayed to pass the judgment by taking into consideration of the terms of the joint memo.
9. Heard and perused the contents of the joint memo and submissions made by both parties and their respective counsels are taken into consideration and perused the other records available on the record, the following points that are arise for consideration:
1. Whether the complainant proves that the accused has issued a cheque bearing No.066361 dated: 30.06.2015 for Rs.35,00,000/ drawn on Bank of India, Sahakar Nagar Branch, Bengaluru to discharge legally recoverable debt to the complainant and when the complainant has presented cheque for encashment through his banker but the said cheque was returned dishonoured for the reason "Account Closed" on 25.9.2015 on The complainant issued legal notice to the accused on 8.10.2015 and inspite of it the accused has not paid the cheque amount within prescribed period there by CC No.27906/2015 8 the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
10. The above points are answered as under:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
REASONS
11. Point No.1: Before appreciation of the facts and oral and documentary evidence in the present case, it is relevant to mention that, under criminal jurisprudence prosecution is required to establish guilt of the accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 146 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The CC No.27906/2015 9 offence U/s.138 of N.I. Act presupposes three conditions for prosecution of an offence which are as under:
1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.
2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
12. It is also one of the essential ingredients of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or CC No.27906/2015 10 liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e.,U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even U/Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and or rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions.
13. In the present case, the complainant himself examined as PW.1 by filing his affidavit evidence in lieu of oral evidence, wherein he has reiterated the complaint averments i.e. about issuance of cheque by the accused, presentation of cheque, dishonour of cheque, for the reason of Account Closed. It is further testified by the complainant that, after receipt of memo of the bank, he has issued a legal notice on 8.10.2015 CC No.27906/2015 11 through his advocate to the accused by registered post and the said notice was served on the Accused, inspite of knowing fully well, the Accused failed to pay the amount of the cheque within the stipulated time, and the Accused not even cared to give reply to his notice. In support of his oral evidence, he has produced the Original Cheque dated: 30.6.2015 as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), two Bank Memos as per Ex.P.2 and P.3 respectively, the office copy of the Legal Notice as per Ex.P.4, postal acknowledgement as per Ex.P.5, the Pronote and Consideration Receipt as per Ex.P.6 signatures of the accused on the said pronote as per Ex.P.6(a) and 6(b), Loan Agreement as per Ex.P.7, signatures of the accused on Ex.P.7 as per Ex.P.7(a) and 7(b), Cancellation of Sale Deed as per Ex.P.8, M.R. Extract as per Ex.P.9, Pahani Extract as per Ex.P.10, Statement of Accounts as per Ex.P.11, Certified copy of the sale deed dt: 21.8.2008 as per Ex.P.12, Lease Agreement dt: 23.2.2012 as per Ex.P.13, certified copy of the sale deed dt: 13.6.2013 as per Ex.P.14, certified copy of the Absolute sale deed dt: 29.10.2008 is as per CC No.27906/2015 12 Ex.P.15, Statement of Accounts for the period from 1.4.2011 to 31.3.2012 as per Ex.P.16, Statements of accounts for the period from 1.4.2012 to 31.3.2013 as per Ex.P.17, Statement of Accounts for the period from 1.4.2013 to 31.3.2014 as per Ex.P.18, Complaint of CC No.21925/15, certified copies of the Notice, Reply Notice, Rejoinder Notice are as per Ex.P19 to P.22 respectively, certified copy of the Joint memo as per Ex.P.23, certified copy of the Release Deed as per Ex.P.24. On careful perusal of the documents produced by the complainant i.e., Ex.P.1 to P.24, it is established that, the complainant has complied the procedural requirements as contemplated u/s 138 of the Negotiable Instrument Act. The accused has also crossexamined the complainant/PW.1 and thereafter the complainant closed his side.
14. Thereafter statement U/s. 313(1)(a) of Cr.P.C. recorded and the accused himself examined as DW.1 and also relied upon the documentary evidence which are marked as per Ex.D.1 to D.5 and closed his side and the accused also cross examined by the complainant.
CC No.27906/2015 13
15. It is also relevant here to mention that, when the case was posted for arguments and the learned counsel for the complainant has also submitted his written argument and thereafter the accused and the complainant have filed joint memo on 05.01.2021 stating that they have amicably entered into compromise in this case by the advise of well wishers and the complainant and accused voluntarily submitted the said joint memo and it is duly signed by them and their respective counsels, the accused has admitted the case of the complaint as well as the issuance of cheque in question. On an enquiry, the complainant and accused submitted before the court that they are aware of the terms and conditions of the joint memo and accepted the same with free and voluntarily.
16. It is also seen from the terms of the joint memo, the accused has agreed to pay an amount of Rs.25,00,000/ (Rupees Twenty Five Lakhs Only) to the complainant towards full and final settlement, by way of two installments i.e.
1) Rs.10,00,000/ through cheque bearing CC No.27906/2015 14 No.102430 dt: 25.2.2021 and 2) Rs.15,00,000/ through cheque bearing No.102431 dt: 31.05.2021 both cheques were drawn on Bank of India, Sahakarnagar Branch, Bengaluru and the complainant has also agreed to receive the said amount in the above said manner and both parties requested to pass the judgment as per the terms and conditions of the joint memo.
17. As the terms and conditions of the joint memo is accepted by the complainant and the accused, in the ends of justice it is just and proper to accept the same and permit the accused to pay the admitted amount or settled amount to the complainant as agreed between the complainant and accused in the joint memo. Under these circumstances, the above point is answered in the Affirmative.
18. Point No.2: In the light of discussions made in the above point and as per the terms of joint memo the accused is liable to pay amount to the complainant as agreed by him hence in the ends of justice it is just and proper to pass the following : CC No.27906/2015 15 ORDER Acting U/sec.264 of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of Negotiable Instruments Act.
The accused is sentenced to pay an amount of Rs.25,00,000/ (Rupees Twenty Five Lakhs Only) to the complainant towards full and final settlement by way of two installments i.e.,
1) Rs.10,00,000/ through cheque bearing No.102430 dt: 25.2.2021 and 2) Rs.15,00,000/ through cheque bearing No.102431 dt:
31.05.2021, both cheques were drawn on Bank of India, Sahakarnagar Branch, Bengaluru.
The Joint Memo filed by the complainant and the accused shall form part and parcel of this order.
In default the Accused shall under go simple imprisonment for a period of (1) One month for the offence punishable U/sec.138 of N.I.Act and also liable to pay the amount as per the Joint memo to the complainant.
CC No.27906/2015 16 The Bail bond and Surety bond of the accused stands cancelled.
Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
(Directly dictated to the Stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 11th day of January, 2021).
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant: P.W.1 : Sri. M.T.Venkatashiva Reddy @ M.T.V. Reddy
2. List of documents exhibited on behalf of the Complainant: Ex.P.1 : Original Cheque;
Ex.P.1(a) : Signature of the Accused;
Ex.P.2 & P.3 : Bank Memos;
Ex.P.4 : office copy of the Legal Notice
Ex.P.5 : Postal acknowledgement;
Ex.P.6 : Pronote and Consideration Receipt
Ex.P.6(a) & : signatures of the accused on the
6(b) pronote
CC No.27906/2015
17
Ex.P.7 : Loan Agreement
Ex.P.7(a) & : signatures of the accused on
7(b) Ex.P.7
Ex.P.8 : Cancellation of Sale Deed
Ex.P.9 : M.R. Extract
Ex.P.10 : Pahani Extract (RTC)
Ex.P.11 : Statement of Accounts
Ex.P.12 : Certified copy of the sale deed dt:
21.8.2008
Ex.P.13 : Lease Agreement dt: 23.2.2012
Ex.P.14 : certified copy of the sale deed dt:
13.6.2013
Ex.P.15 : certified copy of the Absolute sale
deed dt: 29.10.2008
Ex.P.16 : Statement of Accounts for the
period from 1.4.2011 to 31.3.2012 Ex.P.17 : Statements of accounts for the period from 1.4.2012 to 31.3.2013 Ex.P.18 : Statement of Accounts for the period from 1.4.2013 to 31.3.2014 Ex.P.19 to : Complaint of CC No.21925/15, P.22 certified copies of the Notice, Reply Notice, Rejoinder Notice Ex.P.23 : certified copy of the Joint memo Ex.P.24 : certified copy of the Release Deed
3. List of witness/s examined on behalf of the Accused: DW.1 : Sri. N.Narayana Swamy, CC No.27906/2015 18
4. List of documents exhibited on behalf of the Accused: Ex.D.1 : Original Handwritten Personal Notice dt: 11.7.2015 (Marked through PW.1) Ex.D.2 : Certified copy of the Reply Notice dt: 23.7.2015 (Marked through PW.1) Ex.D.3 : Certified copy of the Rejoinder dt: 10.8.2015 (Marked through PW.1) Ex.D.4 : certified copy of the Order sheet of CC No.196/2009 Ex.D.5 : Certified copy of the FIR Copy (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
CC No.27906/2015 19 11.1.2021 Case called out, Both complainant and counsel for the complainant present, accused absent, counsel for the accused present. E.P. Filed, Heard and allowed. Judgment pronounced, vide separate order ORDER Acting U/sec.264 of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of Negotiable Instruments Act.
The accused is sentenced to pay an amount of Rs.25,00,000/ (Rupees Twenty Five Lakhs Only) to the complainant towards full and final settlement by way of two installments i.e., 1) Rs.10,00,000/ through cheque bearing No.102430 dt: 25.2.2021 and 2) Rs.15,00,000/ through cheque bearing No.102431 dt: 31.05.2021, both cheques were drawn on Bank of India, Sahakarnagar Branch, Bengaluru.
The Joint Memo filed by the complainant and the accused shall form part and parcel of this order.
In default the Accused shall under go simple imprisonment for a period of (1) One month for the offence punishable U/sec.138 of N.I.Act and CC No.27906/2015 20 also liable to pay the amount as per the Joint memo to the complainant.
The Bail bond and Surety bond of the accused stands cancelled.
Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
XVI ACMM, B'luru.