Bangalore District Court
Subramani.M.V vs Sandeep.A on 1 June, 2019
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 1st day of June - 2019
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.16767/2018
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Subramani.M.V,
S/o.Late.Venkataramanappa,
Aged about 53 years,
R/at No.23, 5th Cross,
2nd Main, Opp: Sharadha School,
Byatarayanapura,
Bengaluru.
(Rep. by Sri.Pramod.M, Adv.)
V/S
Accused : Sandeep.A,
Aged Major,
S/o.Anantharamaiah,
R/at No.70, Srinivasa Nilaya,
5th Cross, 1st Main, ISRO Layout,
Bengaluru-78.
(Rep.by Sri.S.Shivashankar, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 2 C.C.16767/2018
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 01.06.2019.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
J U D G M E N T
The complainant has presented the instant complaint on 08.05.2018 against the accused under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque amount of Rs.2,45,000/-.
2. In nut shall, the case of the complainant is:
The complainant and accused were knew each other from considerable time. During the first week of June, 2017, the accused has approached the complainant and requested for financial assistance to the tune of Rs.2,45,000/- to meet out his urgent domestic problems and assured to repay the same in installments within six months. Believed the version of Judgment 3 C.C.16767/2018 accused, the complainant has mobilized the funds and paid to the accused by way of cash. While receiving the said amount, the accused has issued a cheque bearing No.714929 drawn on ICICI Bank, Bengaluru in favour of complainant towards security of the said loan amount.
The complainant has further alleged that, the accused never turned up to pay the installments as agreed by him, after lapse of six months, the complainant has approached the jurisdictional Byatarayanapura Police on 26.01.2018 and the said police have endorsed on 30.01.2018 and instructed the complainant that, to approach the court. Accordingly, the complainant has presented the cheque issued by the accused for encashment through his banker viz., Canara Bank, Byatarayanapura Branch, Bengaluru. But to utter shock and dismay to complainant, the said cheque came to be dishonoured with a memo dated:17.03.2018 stating "Funds Insufficient". Immediately, the complainant approached the accused and informed the fact of dishonour, but the accused Judgment 4 C.C.16767/2018 has dodging the time for one or other reasons and failed to repay the cheque amount. Thereafter, he got issued legal notice to the accused on 06.04.2018 by R.P.A.D though his cousel, calling upon him to pay the amount covered under the cheque and the same was duly served upon accused on 09.04.2018. After receipt of legal notice, the accused has neither paid the cheque amount nor replied the notice.
Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, the complaint.
3. After presentation of the complaint before this court, my predecessor in office has taken the cognizance and got registered the case and recorded the sworn statement of the complainant and got marked Ex.P1 to P7(a). Thereafter, since the complainant made out prima-facie case to proceed against the accused, the instant criminal case has been registered and process was issued to the accused.
4. In response to the summons, the accused appeared through his counsel before this court and obtained the bail. Judgment 5 C.C.16767/2018 After receipt of the copy of the complaint as required, the accusation read over and explained to the accused, he denied the same and claimed to have the defence. Looking into the nature of the present case and alleged transaction, present case is treated as summons trial case. Thereafter, the sworn statement of complainant treated as complainant evidence, the application required under Section 145(2) of Negotiable Instruments Act was submitted by the accused. When the stage is set for cross of PW.1, at that time both the parties, submitted the joint memo reporting their settlement.
5. Heard both side.
6. On going through the materials available on record, the following points have been arisen for determination:
1) Whether the complainant proves beyond the reasonable doubt that, he paid sum of Rs.2,45,000/- to the accused as hand loan, and in turn, for repayment of the same, the accused got issued the Ex.P1-cheque bearing No.714929, dated:14.03.2018, drawn on ICICI Bank Ltd., ICICI Towers, Commissariat Road, Bengaluru? Judgment 6 C.C.16767/2018
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
7. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the partly Affirmative Point No.3 : As per final order, for the following:
R E A S O N S
8. POINT NOs.1 and 2: Since these two points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
On going through the rival contentions taken by the complainant as well as accused during the course of recording of plea, the fact that, the Ex.P1 cheque belongs to the accused and the signature found therein Ex.P1(a) belongs to him is also not in dispute. Through out the case, the accused Judgment 7 C.C.16767/2018 has not disputed the compliance of mandatory provisions to maintain the present case.
9. In order to prove the case of complainant, the complaint averments has reiterated in the affidavit filed in lieu of his chief examination. The PW.1 supported with documents at Exs.P1 to P7(a), which are:
a) Ex.P1 is the cheque bearing No.714929 issued by the accused for sum of Rs.2,45,000/- dated:14.03.2018, drawn on ICICI Bank, ICICI Towers, Commissariat Road, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Exs.P2 and P3 are the Bank Memos dated:
17.03.2018.
d) Ex.P4 is the Legal Notice dated:06.04.2018.
e) Ex.P5 is the Postal receipt.
f) Ex.P6 is the Postal Acknowledgment Card.
g) Ex.P7 is the private complaint and
h) Ex.P7(a) is the signature of complainant.
10. No doubt, during the record of plea, the accused denied the very allegations made against him, but got settled the Judgment 8 C.C.16767/2018 dispute with the complainant as per the joint memo submitted by both the parties through their respective counsels. By filing of the joint memo, the accused has admitted his liability arised through Ex.P1 cheque. By way of filing joint memo, the accused undertakes to pay the money under following terms, for the tune of Rs.1,20,000/- out of the cheque amount of Rs.2,45,000/-. The joint memo filed by both the complainant and accused voluntarily through their respective counsels with regard to the payment, which runs thus:
"As per joint memo, the accused has paid sum of Rs.49,000/- on 25.02.2019 and Rs.10,000/- on 27.05.2019 to the complainant, and the complainant was reported the same and the accused has undertakes to pay the remaining amount of Rs.60,000/- in one lumpsum on or before 11.07.2019".
11. On going through the said joint memo submitted by both the parties, it made clear that, the complainant and accused have settled the dues for sum of Rs.1,20,000/- in respect of Judgment 9 C.C.16767/2018 the Ex.P1 cheque. As per the joint memo terms and conditions, the accused has paid sum of Rs.49,000/- on 25.02.2019 and Rs.10,000/- on 27.05.2019 to the complainant, and the complainant was reported the same and the accused has undertakes to pay the remaining amount of Rs.60,000/- in one lumpsum on or before 11.07.2019. The complainant agreed to receive the said amount. Therefore, the settlement entered into between complainant and accused through their respective counsels has to be considered in the best interest of the parties.
12. No doubt, in this case, the accused has settled the dues with the complainant, therefore, once again the proceeding further, as accused admitting the liability regarding Ex.P1 cheque as legally recoverable debt does not arise. Considering the joint memo submitted by the complainant and accused, it appears this court that, it is a fit case to pass the fine sentence in terms of joint memo. Otherwise, if the accused failed to pay the said money as agreed, the Judgment 10 C.C.16767/2018 complainant will be put to more hardship and loss. If not pass the fine sentence on the accused in terms of joint memo by convicting the accused for the alleged offence, it will encourage, the accused may not clear the dues within the stipulated period. Under such circumstances, the very purpose of settlement will be defeated. Therefore, it is just and proper convict the accused for the alleged offence with regard to the agreed money. As discussed above, the complainant has proved his case beyond the reasonable doubt. If the accused failed to pay the remaining agreed money on or before 10.07.2019, as default sentence, the accused shall under go simple imprisonment for 3 (Three) months. If that is done, it will meet the ends of justice. The complainant has partly proved his case with regard to the cheque amount. In this case, the accused has not disputed the compliance of mandatory provision.
13. As discussed above, the accused has admitted the very transaction and settled the dues for the tune of Judgment 11 C.C.16767/2018 Rs.1,20,000/-. Since the accused is admitted, it is just and proper to bind the parties to comply the joint compromise memo submitted by them. As per the joint memo terms and conditions, the accused has paid sum of Rs.49,000/- on 25.02.2019 and Rs.10,000/- on 27.05.2019 to the complainant, and the complainant was reported the same and the accused has undertakes to pay the remaining amount of Rs.60,000/- in one lumpsum on or before 11.07.2019. Hence, it requires to pass the fine sentence of Rs.60,000/- with a direction to the accused to pay the same as fine amount and in turn, the same fine amount shall be given to the complainant as compensation as per Section 357 of Cr.P.C. As this case, already treated as, summons trial case. If the accused has failed to pay the agreed money, the accused shall under go simple imprisonment for 03 months. Hence, as discussed above, the Point No.1 is answered in the Affirmative and the Point No.2 is answered in the partly Affirmative.
Judgment 12 C.C.16767/2018
14. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
O R D E R Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C.
the accused shall pay the fine of Rs.60,000/-.
The said fine amount shall pay as compensation to the complainant.
If the accused failed to pay the remaining agreed money on or before 11.07.2019, as default sentence, the accused shall under go simple imprisonment for 03 (Three) months.Judgment 13 C.C.16767/2018
The joint memo submitted by both the parties shall be read as part and parcel of this order.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
(Dictated to the Stenographer directly on computer typed by him, corrected and then pronounced by me in the open court on this the 1st day of June - 2019) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Subramani.M.V List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque
Ex.P1(a) : Signature of accused
Exs.P2 & P3 : Bank endorsements
Ex.P4 : Office copy of legal notice
Ex.P5 : Postal receipt
Ex.P6 : Postal Acknowledgment Card
Judgment 14 C.C.16767/2018
Ex.P7 : Private complaint
Ex.P7(a) : Signature of complainant
List of Witnesses examined on behalf of the defence:
- None -
List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru. Judgment 15 C.C.16767/2018 01.06.2019.
Comp -
Accd -
For Judgment
Case called out. Complainant and
accused are absent. No representation on
behalf of both side. Accused remained
absent. Hence, the judgment is passed as
per Section 353(6) of Cr.P.C.
Judgment pronounced in the open court vide separate order.
***** O R D E R Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C.
the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C.
the accused shall pay the fine of Rs.60,000/-.
Judgment 16 C.C.16767/2018The said fine amount shall pay as compensation to the complainant.
If the accused failed to pay the remaining agreed money on or before 11.07.2019, as default sentence, the accused shall under go simple imprisonment for 03 (Three) months.
The joint memo submitted by both the parties shall be read as part and parcel of this order.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.