Bangalore District Court
Roshan P.Tevare vs Ashok on 1 February, 2021
IN THE COURT OF THE XVIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, BANGALORE
PRESENT: MANJUNATHA.K.P, B.A.L, LL.B.
XVIII ADDL.C.M.M., BANGALORE
DATED : THIS THE 1ST DAY OF FEBRUARY 2021
C.C.NO: 31118/2018
COMPLAINANT:- Roshan P.Tevare,
S/o Late.Parasuram Vittal Tevare
Aged about 30 years,
R/at No.59, II Floor,
DUO Residency,
Jakkur Plantation,
Bengaluru-560 064.
(By Shri.SKN.- Advocate)
Vs
ACCUSED:- Ashok,
Father's name not known,
to the complainant
Aged about 45 years,
R/at No.20, II Floor, I Main Road,
Vaishnavi Layout, Vidyaranyapura,
Benglauru-560 097.
(By Shri.JM, Advocate)
JUDGEMENT
The complainant has presented the complaint under Section 200 of Cr.P.C against the accused for the alleged offence punishable under Section 138 of N.I. Act.
2. After filing of the complaint, cognizance of the offence was taken. After recording sworn statement in pursuance of summons, presence of the accused was secured and he was 2 C.C.31118/2018 enlarged on bail. The substance of accusation was recorded and the accused pleaded not guilty.
3. To prove the complaint averments, the complainant was examined as P.W.1 and has produced documents marked as per Ex.P.1 to Ex.P.6. When the matter was pending, both the parties to the case represented through their respective advocates have filed compromise petition reporting matter is settled between the parties for Rs.78,000/-. Therefore, defence evidence was taken as nil. After the joint memo accused only paid Rs.30,000/- and due Rs.48,000/-. Hence, complainant prays to pass judgment for said amount .
4. Heard the arguments.
5. After analyzing the averments made in the complaint, oral and documentary evidence placed on record and after hearing the arguments, at this stage the points that arise for my determination are:-
1) Whether the complainant has proves that accused is liable to make payment of Rs.48,000/- settled amount as per joint memo dated 30/10/2018 and he has failed to make payment and thereby he is guilty 3 C.C.31118/2018 of the offence punishable under Section 138 of N.I.Act?
2) What order?
6. My findings on the aforesaid points are as under:-
POINT NO.1 : In the Affirmative, POINT NO.2 : As per final order, for the following:-
REASONS
7. POINT NO.1:- As per the complaint averments, complainant was a tenant under the accused in respect of the residential premises being a one bedroom house situated in the III floor of the property bearing No.20, II Floor, I Main Road, Vaishnavi Layout, Vidyaranyapura, Bengaluru-560 097 owned by the accused , for the period 2011 to 2015 and at the time of inception of tenancy, as demanded by the accused , the complainant had paid a sum of Rs.85,000/- to the accused towards interest free refundable security deposit which was duly acknowledged by the accused and the said amount was required to be refunded by the accused to the complainant at the time of the complainant vacating the said premises. Complainant had informed the accused about vacating the said premises in advance and requested the accused to keep aforementioned amount of Rs.85,000/- security deposit ready 4 C.C.31118/2018 to be repaid to the complainant and the accused had agreed for the same. When the complainant had given the date of vacating the said premises, the accused had agreed for the same and instructed the complainant that he would deduct a sum of Rs.8,000/- towards painting and repaid charges and repay the balance of Rs.77,000/- at the time of handing over the keys of the premises and the complainant had agreed for the same. On the day fixed hand over the keys of the said premises, the accused received the keys and had paid a sum of Rs.3,000/- only by way of cash and after receiving the keys from the complainant the accused pleaded for time to pay the balance of Rs.74,000/- stating he had paucity of funds and though initially the complainant did not agree for the same, the accused succeeded in pursuing the complainant for the same and the complainant acted in good faith and totally trusting the words of the accused , vacated the premises by handing over the keys of the premises, accused is due and liable to pay a sum of Rs.74,000/- to the complainant in respect of the aforementioned transaction. The complainant made several repeated requests and demands to the accused over phone and in person, to pay the amount but he kept on postponing the payment under one pretext or the other giving 5 C.C.31118/2018 one or the other reason. When the complainant demanded to repay the amount, the accused in discharge of the said debt alleged to have issued a cheque in favour of the complainant bearing No:646016 dated 18/9/2017 for Rs.74,000/- drawn on Syndicate Bank, BEL Layout, Vidyaranyapura Branch, Bengaluru. The complainant presented the cheque before his bank for realization of the cheque amount, but as per the memo it was returned unpaid with an endorsement "Funds Insufficient" . Thereafter, the complainant got issued demand notice and called upon the accused to make payment of the dishonoured cheque amount. After service of notice, the accused has neither made payment nor sent any reply. The complainant in his affidavit filed in lieu of examination-in-chief deposed as per the averments made in the complaint.
8. The complainant has produced Ex.P-1 cheque issued by the accused for Rs.74,000/- dated 18/9/2017 drawn on Syndicate Bank, BEL Layout, Vidyaranyapura Branch, Bengaluru. As per Ex.P-2 & 3 memos the said cheque was returned unpaid with an endorsement "Funds Insufficient". Ex.P-4 is the copy of the statutory demand notice issued to the accused and it was sent to the accused and as per Ex.P-5 6 C.C.31118/2018 and Ex.P.6 postal receipt and acknowledgment. the said notice was duly served on the accused. After service of the notice, the accused did not issue any reply to the said notice.
9. That on 30/10/2018 both the parties to the case have filed joint memo reporting they have mutually settled the matter for Rs.78,000/-. The accused had agreed to make payment of the aforesaid amount in 3 installments commencing from 30/10/2018 to 27/12/2018 as stated in the joint memo. But accused has paid only Rs.30,000/- and due remaining balance of Rs.48,000/- hence both the parties have prayed to pass the judgment on joint memo for Rs.48,000/-. In view of filing of the joint memo, cross-examination of the complainant and defence evidence was taken as nil. Therefore, from the documentary and oral evidence placed on record and in view of compromise between the parties, the complainant has proved that the accused had due and in discharge of the said debt, he had issued Ex.P-1 cheque. Therefore, my findings on Point No.1 is in the affirmative.
10). POINT NO.2:- In view of my findings on Point No.1., the accused is liable to be convicted for the offence 7 C.C.31118/2018 punishable under Section 138 of N.I. Act. Hence, I proceed to pass the following:-
ORDER Acting under Section 255 (2) of Cr.P.C, accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. He is sentenced to pay fine of Rs.48,000/- (Rupees Forty Eight Thousand Only) and in default shall undergo simple imprisonment for a period of 2 (Two) Years.
Acting under Section 357 (1) (b) of Cr.P.C, the complainant is entitled for Rs.48,000/- (Rupees Forty Eight Thousand Only) fine amount as compensation.
(Dictated to the Stenographer directly on computer, corrected, revised and signed then pronounced by me in the open court on this the 1 st day of February 2021) .
(MANJUNATHA.K.P) XVIII A.C.M.M., BANGALORE.
ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Roshan P.Tevare
2. LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque
Ex.P.2&3 : Bank endorsements.
8
C.C.31118/2018
Ex.P.4 : Office copy of demand notice.
Ex.P.5 : Postal receipt.
Ex.P.6 : Postal acknowledgment.
3. LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
- Nil -
4.LISTOF DOCUMENTS MARKED FOR THE ACCUSED:
-
- Nil -
XVIII A.C.M.M., BANGALORE. 9 C.C.31118/2018 1 C.C.31118/2018