Bangalore District Court
Having Its Registered Office vs S/O Muniyappa R on 6 April, 2022
KABC020182732019
1 C.C. NO.4024/2019
SCCH-26
BEFORE THE COURT OF XXIV ADDITIONAL SMALL CAUSES JUDGE
AND THE MOTOR ACCIDENT CLAIMS TRIBUNAL & A.C.M.M.
(SCCH26) AT BENGALURU
DATED THIS THE 6th DAY OF APRIL 2022
PRESENT: SRI.R.MAHESHA. B.A.,L, LLB.,
XXIV ADDL. SCJ &
ACMM & MEMBER MACT
BENGALURU.
1. Sl. No. of the Case CC.No.4024 of 2019
2. The date of 18072019
commencement of
evidence
3. The date of closing 16032022
evidence
4. Name of the M/s. Kapil Chits (K) Pvt., Ltd.,
Complainant having its registered office
at No.52A, 4th cross,
Marenahalli, 2nd phase
J.P.Nagar
Bangalore
Represented by Legal officer
Sri.T.Prasad
(By Sri.S.B.S.Advocate)
5. Name of the Mr.Srinivas M
Accused S/o Muniyappa R
Major
R/at No.55, 36th main,
Eart End main road,
KABC020182732019
2 C.C. NO.4024/2019
SCCH-26
URS colony, Jayanagar
Bangalore560069.
(By Sri.ASNKAdvocate)
6. The offence U/s.138 of the Negotiable Instruments Act
complained of
7. Opinion of the Accused found not guilty
judge
JUDGMENT
The complainant has approached this court with the complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 r/w Sec.142 of Negotiable Instruments Act, 1881. (herein after referred as N.I. Act)
2. The case of the complainant is that, accused had subscriber for a chit group bearing No.BJS01J20 with the ticket No.20 for a chit value of Rs.5 lakhs payable at Rs.20,000/p.m. over a period fo 25 months at Jayanagar branch. That the accused became the successful bidder in auction held on 2742013 for bid value ofRs.72,000/ and the accused has received the prize amount of Rs.4,28,000/ on 2672013 after the accused furnished the requisite surety. That the accused due from 111 KABC020182732019 3 C.C. NO.4024/2019 SCCH-26 2014 and defaulted in payment/isntallment amount and subsequently the chit also completed its full term of 25 months. That the accused owes the complainant in all Rs.2,05,092/ ad at the time the accused had issued a cheque bearing No.141823 for Rs.2,05,092/ING Vysya bank, Indiranagar branch,Bangalore dated 1832019. That the complainant has presented the above cheque to the bank for encashment, but the said cheque dishonoured and returned with endorsement as ACCOUNT BLOCKED, The complainant issued legal notice to the accused on 154 2019. That the accused has not paid the cheque amount demanded therein. Despite service of notice within stipulated period and repeated request of complainant, accused has failed to pay the amount due within time. Therefore without any alternative relief to the complainant, the above complaint preferred against accused.
3. After filing of the complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the complainant was recorded. This court was satisfied as to primafacie case made out by the KABC020182732019 4 C.C. NO.4024/2019 SCCH-26 complainant for issuance of the summons and accordingly Criminal Case was registered against the accused for the offence punishable U/s.138 of N.I. Act and summons was ordered to be issued.
4. In pursuance of the summons issued by this court, the accused has put up his appearance through his counsel and enlarged on bail. Thereafter plea was recorded. The accused has denied the substance of accusation and claimed for trial. The accused has filed application U/s.145(2) of N.I. Act and the said application was allowed and permission was accorded for crossexamination of the complainant (CW.1) as prayed. After fullpledged trial, case posted for arguments on main by both parties. Heard arguments of learned complainant and accused during course of hearing arguments of learned accused advocate, the above matter referred for reporting settlement. Therefore case called before Lok Adalath. Both parties have settled the matter between them amicably and filed joint memo and praying for judgment in terms of joint memo. Accordingly the above matter posted for judgment for passing judgment KABC020182732019 5 C.C. NO.4024/2019 SCCH-26 on joint memo in terms of their settlement.
5. Heard. Perused the material on record, the points that would arise for consideration are:
1) Whether the complainant proves that the accused had issued cheque in question in discharge of the legally recoverable debt and committed the offence punishable under Section 138 of N.I. Act?
2) Whether the joint memo filed by both parties could be allowed?
3) What Order?
6. The above points are answered as under;
Point No.1 : In affirmative, Point No.2 : In affirmative, Point No.3 : As per the final order, for the following.......
REASONS
7.Point Nos. 1 and 2: Since these two points are inter linked and to avoid repetition they are taken together for discussion. As already stated in support of the claim of the complainant, one T.Prasad Legal officer of the complainant company in his sworn statement reiterated the complaint averments and in view of the decision of the Hon'ble Apex Court reported in (2014) 5 SCC 590 Indian Bank Association and others KABC020182732019 6 C.C. NO.4024/2019 SCCH-26 Vs Union of India and others - [W.P. (civil) No.18/2013], the sworn statement itself is treated as evidence of the complainant. In addition to that he has got marked ExP1 to 10. ExP1CC of certificate of incorporation, ExP2Minutes of meeting, ExP3Authorisation letter, Ex P4Cheque, Signature as ExP4(a), ExP5bank endorsement, ExP6Legal notice, ExP7postal receipt, ExP8postal acknowledgment, ExP9 Account extract and ExP10Memo of calculation.
8. The contents of Ex.P1 to P10 are analyzed, they clearly support the version of the complainant. The contents of Ex.P4 and 5 i.e cheque and bank endorsement are analyzed, it is clear that the accused has issued cheque bearing No.141823 dated 14112018 for Rs.2,05,092/ drawn on ING Vysya Bank, Indiranagar branch, Bangalore to the complainant and the complainant company had presented the same for encashment through its banker and the same was returned dishonoured for the reason Account blocked by endorsement as contended by the complainant. Further, from the contents of Ex.P6 and 7, it is clear that KABC020182732019 7 C.C. NO.4024/2019 SCCH-26 after dishonour of the cheque as found in Ex.P4, the complainant got issued legal notice dtd.1542019 to the accused as per Ex.P6 and the said notice was served on the accused. The complainant presented the present complaint on 28062019 i.e after lapse of 15 days from the date of service of notice and within 30 days thereafter. Hence on perusal of these aspects, it is clear that the complainant had presented the cheque for encashment within its validity and got issued statutory notice to the accused within statutory time and filed the complaint within the prescribed period. Admittedly, the accused had not complied with the demand made in the notice. Therefore, on going through these documents their remains no doubt that the complainant had complied with all the technical requirements of Sec.138 of N.I. Act in filing the present complaint. The accused has admitted the cheque in question. Though the accused has denied the substance of acquisition, the accused has not opted to crossexamine the complainant hand the accused has settled the and on the other matter with the complainant and filed joint memo seeking permission for compounding the offence in terms of their KABC020182732019 8 C.C. NO.4024/2019 SCCH-26 settlement. In the light of these facts, there are no grounds to disbelieve the case of the complainant as to existence of legally recoverable debt and also issuance of cheque by the accused towards discharge of due amount in favour of the complainant as put up by the complainant.
9. The statutory presumptions U/s.118 and 139 of the N.I. Act is also in favour of the complainant. Hence, it is clear that the complainant has proved all the necessary ingredients of Sec.138 of N.I. Act and thereby the commission of the offence punishable under the said section as contended.
10. As stated earlier, in this case when the case was posted for defence side arguments, the parties have settled the matter between them for Rs.50,000/ i.e., Rs.20,000/ by way of cash on 2332022 and Rs.30,000/ on 842022 to the complainant, same has been acknowledged by complainant. That the complainant has agreed to receive Rs.50,000/ in the aforesaid manner as full and final settlement KABC020182732019 9 C.C. NO.4024/2019 SCCH-26 towards the accused liability raised under the above complaint.
11. In view of the settlement, the parties have filed joint memo praying for judgment in terms of their settlement. It is needless to say that the offence punishable U/s.138 of N.I. Act is compoundable in nature and the parties are at liberty to settle the matter and thereby compound the offence. Now by filing the joint memo, the parties are seeking judgment in terms of their settlement. Both parties have clearly admitted the contents of the joint memo before the court and stated that it is out of their free will and consent. On going through the contents of the application, this court did not find any grounds to reject the joint memo filed by the parties. There are no reasons to hold that the settlement entered into between the parties is either opposed to the public policy or against to law in any angle.
12. As already stated the offence in question compoundable in nature and since the parties have settled the matter between them, the KABC020182732019 10 C.C. NO.4024/2019 SCCH-26 judgment could be passed on the basis of the said joint memo as sought for by the parties to meet the ends of justice. It is also pertinent to note that in view of the compounding of the offence, the accused has to be acquitted. This court use to convict the accused on the basis of joint memo in several judgments due to lack of proper assistance from bar and clear position of law of Hon'ble Apex court. Now this court noticed Hon'ble Apex court decisions in case between Kousalya Devi Massand Vs Roop Kishore Kore 2011 (4) SCC 593. The Hon'ble Supreme court drew the following distinction between the traditional criminal offences and offence u.s 138 fo NI Act.
Observing thus (same has been extracted here) "Having considered the submission made on behalf of the parties, we are of the view that the gravity of the complaint under NI Act cannot be equated with an offence under the provisions of Indian Penal code 1860 or other criminal offences. An offence u/s 138 of NI Act is almost in the nature of civil wrong which has been given criminal overtones".
KABC020182732019 11 C.C. NO.4024/2019 SCCH-26 As per the observation, the offence is civil wrong in nature, the court ought to have disposed of the case rather convicting the accused.
13. Further it is noticed to this court Hon'ble Apex court decision in case between K.M.Ibrahim Vs K.P.Mohammed and another (2010) I SCC 978. Apex court discussed the object of Section 320 Cr.P.C. which would not in the strict sense of the term apply to a proceeding under NI Act 1881, gives the parties to the proceeding, an opportunity to compound offence mentioned in the table contained in the said section, with or without the leave of the court, and also vests the court with jurisdiction to allow such compromise. By virtue of sub section 8 of 320 Cr.P.C., the legislature has taken one step further in vesting jurisdiction in the court to also acquit the accused/ convict of the offence on the same being allowed to be compounded. In as much as it is with a similar object in mind that Section 147 has been inserted into the NI Act 1881, by amendment, an analogy may be drawn as to the intention of the legislature as expressed in section 320(8) of Cr.P.C. Although the same has not been expressly KABC020182732019 12 C.C. NO.4024/2019 SCCH-26 mentioned in the amended section to a proceeding u/s 147 of aforesaid Act.
Section 320(8) in The Code Of Criminal Procedure, 1973 (8) The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded.
So as per Apex court observation, if both parties compounded offence u/s 138 of NI Act, convicting accused is bad in law. Therefore this court changed its earlier view by realising the principle of law laid down by the Hon'ble above stated Apex court decision.
14. The next question that arise for this court consideration is that if the accused is acquitted what remedy is open to the complainant for recovery of agreed installments from the accused. When accused himself admitted amount of Rs.50000/, since the accused is ordered for the offence punishable u/s 138 of NI Act, the accused cannot be sentenced to KABC020182732019 13 C.C. NO.4024/2019 SCCH-26 pay fine amount and when compensation to the complainant cannot be ordered to be paid out of the said fine amount. The complainant cannot recover the fine amount as provided under section 421 of Cr.P.C. only the amount of sentence of fine can be recovered in the manner as provided u/s 421 of Cr.P.C. as per joint memo, the accused himself admitted to pay an amount of Rs.50,000/ to the complainant on 233 2022 by way of cash for Rs.20,000/ and Rs.30,000/ on 842022, that amount may be considered as compensation to be payable by the accused to the complainant. If the said amount is ordered to be paid as compensation by accused to the complainant, the complainant may recover the same as provided under section 431 of Cr.P.C. SECTION 431 OF CR.P.C. Provides that "any money (other than a fine) payable by virtue of any ordermade under this court and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine. Provided that Section 421 shall, in its application an order u/s 359 by virtue of this section be construed as if in the proviso sub section of 1 of KABC020182732019 14 C.C. NO.4024/2019 SCCH-26 421, after the words and figures "u/s 357" the words and figures are an order for payment of cost u/s 359 had been inserted.
15. The provision of Section 431 of Cr.P.C. provides for recovery of any money other than the fine amount by virtue of any order made under this court. It is include the compensation amount provided u/s 357 of Cr.P.C. u/s 357 (3) of Cr.P.C. " when a court imposes a sentence, of which fine does not form a part, the court may, when passing judgment order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the Act for which the accused person has been sentenced".
16. In this regard this court is being guided by the ruling of the Hon'ble Apex court reported in (2010) I SCC 978 - (K.M.Ibrahim Vs K.P.Mohammed and another). Kousalya Devi Massand Vs Roop Kishore Kore 2011 (4) SCC 593. Therefore considering all these aspects, this KABC020182732019 15 C.C. NO.4024/2019 SCCH-26 court is of the considered view that point Nos.1 & 2 are required to be answered in affirmative and answered accordingly.
17. Point No.3: For the reasons discussed in connection with Point Nos.1 and 2 this court proceed to pass the following......
: ORDER : Acting under Section 255(1) of Cr.PC r/w Sec.147 of N.I. Act, the accused is hereby acquitted for the offence punishable under Section 138 of Negotiable Instrument Act.
It is further ordered that in view of the settlement of the compounding of the offence, the accused shall pay the settled amount of Rs.30,000/ on 842022 without fail.
Further it is ordered that by acting u/s 357 Cr.P.C. the accused is hereby directed to pay compensation of Rs.30,000/ to the complainant on 842022 without fail. Failing which the complainant is at liberty to recover the said amount as provided u/s 431 of Cr.P.C from the accused.
The bail bond of the accused stands cancelled. The cash security of Rs.2,000/ deposited by the accused is ordered to be refunded in his KABC020182732019 16 C.C. NO.4024/2019 SCCH-26 favour through Epayment with proper identification in accordance with law, if refund voucher is furnished.
(Typed to my dictation by the stenographer, directly on computer, corrected, signed and then pronounced by me in the open court on this the 6th day of April 2022) (MAHESHA R.) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.
::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT: PW1 : T.Prasad
LIST OF DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:
ExP1CC of certificate of incorporation, KABC020182732019 17 C.C. NO.4024/2019 SCCH-26 ExP2Minutes of meeting, ExP3Authorisation letter, ExP4Cheque, Signature as ExP4(a), ExP5bank endorsement, ExP6Legal notice, ExP7postal receipt, ExP8postal acknowledgment, ExP9Account extract ExP10Memo of calculation. LIST OF WITNESSES EXAMINED ON BEHALF OF THE ACCUSED: :
NIL LIST OF DOCUMENTS MARKED ON BEHALF OF THE ACCUSED: :
NIL (MAHESHA R.) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU. KABC020182732019 18 C.C. NO.4024/2019 SCCH-26 KABC020182732019 19 C.C. NO.4024/2019 SCCH-26 Dt6.4.2022 Judgment pronounced in the Open Court vide separate:
ORDER Acting under Section 255(1) of Cr.PC r/w Sec.147 of N.I. Act, the accused is hereby acquitted for the offence punishable under Section 138 of Negotiable Instrument Act.
It is further ordered that in view of the settlement of the compounding of the offence, the accused shall pay the settled amount of Rs.30,000/ on 842022 without fail.
Further it is ordered that by acting u/s 357 Cr.P.C. the accused is hereby directed to pay compensation of Rs.30,000/ to the complainant on 842022 without fail. Failing which the complainant is at liberty to recover the said amount as provided u/s 431 of Cr.P.C from the accused.
The bail bond of the accused stands cancelled. The cash security of Rs.2,000/ deposited by the accused is ordered to be refunded in his favour through Epayment with proper identification in accordance with law, if refund voucher is furnished.
KABC020182732019 20 C.C. NO.4024/2019 SCCH-26 (MAHESHA R.) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.