Bangalore District Court
V.Ramachandraiah S/O Veeregowdappa vs H.C.Channakeshava S/O H.C.Channaiah on 5 November, 2022
KABC030413372020
Presented on : 11-09-2020
Registered on : 11-09-2020
Decided on : 05-11-2022
Duration : 2 years, 1 months, 24 days
IN THE COURT OF 36th ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU.
Present:-
Sri. Hanamantarao R.Kulkarni
B.Com., LL.B.,
XXXVI Addl.Chief Metropolitan Magistrate,
Bengaluru.
C.C. No.9541/2020
Dated this the 5th day of November, 2022
Complainant: V.Ramachandraiah s/o Veeregowdappa,
Aged about 68 years, NO.19, Sri
Veerabhadraswamy Nilaya, NGEF layout
main road, Mallathahalli,
Bengaluru- 560056.
(By Sri.Madhu., Advocate)
Versus
Accused: H.C.Channakeshava s/o H.C.Channaiah,
Aged about 38 years, Vanasiri Fruits and
Vegetable shop, No.32, Ground floor,
Gokula Arcade, Jnanajyothi nagar, Ullal
2
C.C.No.9541/2020
main road, Bengaluru-560056.
(By Sri.K.S.N., Advocate)
--------
1. Nature of the offence : Sec. 138 of N.I.Act
2. Commencement of evidence : 08/09/2020
3. Closing of evidence : --
4. Opinion of the Judge : Accused found guilty.
JUDGEMENT
1. This is a private complaint filed by the Complainant under Section 200 of the Code of Criminal Procedure against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act.
2. The brief facts of the case of the complainant are as under:
That, the complainant was the land lord of the accused and the accused was tenant under the complainant in respect of the double bed room house, hotel, non residential commercial shop and one ACC sheet house for the accused staffs, at NGEF layout, main road, Mallathahalli, Bengaluru. The accused has vacated the above said shop on 16/11/2019. As on the date, the accused was liable to pay arrears of rent, arrears of electricity totally to the tune of Rs.1,00,100/- to the complainant. The accused has issued a cheque bearing no.728340 dated 04/07/2020 for Rs.1,00,000/- drawn on Canara Bank, Nagarabhavi 2 nd stage, Bengaluru in favour of the complainant. The 3 C.C.No.9541/2020 complainant has presented the afore said cheque for encashment through his banker and the said cheque was dishonoured and the banker has given an endorsement as Funds Insufficient on 06/07/2020. The complainant has issued the legal notice on 14/07/2020 to the accused and it has been served on the accused on 20/07/2020. Even after the statutory period is over the accused has not made any payment till today, hence the complainant is constrained to file this complaint.
3. After the presentation of the complaint, cognizance for the offence punishable under Section 138 of the N.I. Act was taken, sworn statement of the complainant was recorded and after perusal of the complaint, sworn statement and the relevant documents and upon prima facie case as made out by the complainant, case was registered and process was issued against the accused and in pursuance of the said process, accused entered his appearance before the Court and enlarged on bail and when the case is posted for further cross of P.W.1., the complainant and accused were present before the Court and filed joint memo and they have requested to pass the judgment on the joint memo.
4. I have heard both the Counsel.
5. After perusal of the records of the case, the following points would arise for my consideration:
1. Whether the complainant proves that the accused has issued a cheque i.e., Ex.P1 and the same is 4 C.C.No.9541/2020 dishonoured by the Bank as "Funds Insufficient"
and in spite of receiving statutory notice the accused has failed to make payment of the cheque within the statutory period and thereby committed an offence punishable under Section 138 of the Negotiable Instruments Act?
2. To what order?
6. My findings to the above 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: The complainant has filed the complaint alleging that the accused has committed the offence punishable under Sec.138 of Negotiable Instruments Act. When the matter was posted for further cross of P.W.1, the complainant and accused have filed joint memo on 14/10/2022.
8. Under the joint memo, the matter has been settled between the parties and the accused has agreed to pay Rs.1,00,000/- to the complainant towards full and final settlement in ten equal instalments as mentioned in the joint memo and the complainant has acknowledged the same. It is pertinent to note that the accused has paid Rs.10,000/- to the complainant on 14/10/2022 and now the remaining balance amount of Rs.90,000/- to be paid in nine equal instalments of Rs.10,000/- each on every 10th day of every month by way of cash or account transfer.
5C.C.No.9541/2020
9. In order to attract the provisions of Section 138 of Negotiable Instruments Act, the complainant has to establish that he has complied with the conditions mentioned under Section 138 of Negotiable Instruments Act. The afore said cheque was presented to the bank by the complainant within the period of its validity and the cheque return memo dated 06/07/2020 issued by the bank with reasons "Funds Insufficient" is received from the bank and the complainant has given the notice in writing to the accused on 14/07/2020 and it has been served on the accused on 20/07/2020. In spite of proper service of the statutory notice, the accused has failed to make payment of the said amount of money to the complainant within 15 days. Hence by producing Ex.P.1 to Ex.P7, the complainant has satisfactorily established that he has complied with the statutory requirements of the proviso to Section138 of Negotiable Instruments Act. The cause of action to the complainant arose after expiry of period of 15 days of the receipt of the legal notice. The complainant has filed the complaint in writing under the provisions of Section 200 of Cr.P.C. on 31/08/2020 which is within the period of one month from which the date on which the cause of action arose and hence the complainant has complied with the provisions of Section 142 of Negotiable Instruments Act. It is important to note that from the application it is crystal clear that the accused has not paid the cheque amount to the complainant.
6C.C.No.9541/2020
10. Upon appreciation of the materials and documents on record, this Court is of the opinion that the accused has failed to prove that he has not issued the cheque marked at Ex.P1 for legally enforceable debt and on the contrary, the complainant has proved that the accused has issued the afore said cheque in question towards the discharge of legally enforceable debt. When the cheque was presented to the bank, the cheque has been dishonoured by the bank for Funds Insufficient and the legal notice has been issued to the accused and in spite of the service of notice on the accused, he has not repaid the outstanding amount to the complainant. Hence, the court is of opinion that the complainant has proved that the accused has committed the offence punishable under Sec.138 of Negotiable Instruments Act.
11. Having regard to the entire materials on record, I am of the considered opinion that the accused has failed to prove that he had not issued the afore said Cheque for discharge of his legal debt or liability and on the other hand the Complainant has convincingly proved that the cheque issued by the accused was in discharge of his legal liability and the same was dishonoured for Funds Insufficient and thereby he has committed an offence punishable u/s 138 of the Negotiable Instruments Act. Accordingly, I answer this point in the Affirmative. Further, both the parties i.e., complainant and the accused have consented to pass the judgment for payment of agreed amount as per the 7 C.C.No.9541/2020 joint memo. When the complainant and the accused themselves have come forward with mode of repayment of the outstanding amount, the Court is of the opinion that it is just to permit the accused to pay the amount as agreed by both the parties.
12. Point No.2: In view of my discussion made supra, I proceed to pass the following:
ORDER Acting u/S.255 (2) of the Code of Criminal Procedure, I hereby convict the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced to pay fine of Rs.90,000/- which is to be paid in nine equal instalments of Rs.10,000/- each on every 10th day of every month by way of cash or account transfer as full and final settlement as mentioned in the joint memo.
In default of payment of fine, the accused shall undergo Simple Imprisonment for a period of one year. The fine amount of Rs.90,000/- shall be paid to the complainant as compensation under Sec.357 of Cr.P.C.
The contents of the joint memo are part and parcel of the record.
The bail bond of the accused stand cancelled automatically on the payment of agreed amount to the complainant.8
C.C.No.9541/2020 Free copy of the Judgement shall be furnished to the accused forthwith.
(Directly I have typed on my laptop, typed by me, corrected and signed then pronounced by me in the Open Court on this the 5th day of November, 2022) (Hanamantarao R.Kulkarni) XXXVI A.C.M.M., Bengaluru.
:ANNEXURE:
Witnesses examined on behalf of the Complainant: PW.1: V.Ramachandraiah Documents marked on behalf of the Complainant: Ex.P1: Cheque Ex.P2: Bank endorsement.
Ex.P3: Legal notice.
Ex.P4 and 5: Postal receipts. Ex.P6 and 7: Track consignment. Ex.P8: Reply notice.
Witnesses examined on behalf of the accused: Nil.
Documents marked on behalf of the accused: Nil.
(Hanamantarao R.Kulkarni) XXXVI A.C.M.M. Bengaluru.9
C.C.No.9541/2020 (Judgment pronounced in Open Court) ORDER Acting u/S.255 (2) of the Code of Criminal Procedure, I hereby convict the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced to pay fine of Rs.90,000/- which is to be paid in nine equal instalments of Rs.10,000/- each on every 10th day of every month by way of cash or account transfer as full and final settlement as mentioned in the joint memo.1
C.C.No.9541/2020 In default of payment of fine, the accused shall undergo Simple Imprisonment for a period of one year. The fine amount of Rs.90,000/- shall be paid to the complainant as compensation under Sec.357 of Cr.P.C.
The contents of the joint memo are part and parcel of the record.
The bail bond of the accused stand cancelled automatically on the payment of agreed amount to the complainant.
Free copy of the Judgement shall be furnished to the accused forthwith.
(Hanamantarao R.Kulkarni) XXXVI A.C.M.M., Bengaluru.