Bangalore District Court
Live In Hastimal Gheewal vs Shah Chandrakanth on 27 March, 2024
1 CC.No.19492/2023
KABC030346892023
Presented on : 04-08-2023
Registered on : 04-08-2023
Decided on : 27-03-2024
Duration : 0 years, 7 months, 23 days
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 27 th day of March 2024
Present: SRI.N.M.RAMESHA, B'Com, L.L.M
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : CC.No.19492/2023
Complainant : Live in Hastimal Gheewal
No.87, H.B.Samaj Road
DVG Road Cross, Basavanagudi,
Bengalur - 560004.
Represented by its proprietor
Mr.Hiralal.S
S/o Shanthi Lal
Aged about 43 years
(By Sri.M.Laxmanna, Adv.,)
- Vs -
2 CC.No.19492/2023
Accused : Mr.Shah Chandrakanth
S/o Mangal Das
Aged about 42 years
R/at No.4, 2nd Floor,
Indralock Apartment, V.V.Puram,
Bengaluru - 560004.
and also:
Padmavati Namkeens
No.6/3, S.B.Road, V.V.Puram,
Bengaluru - 560004.
Represented by its
Proprietor
Mr.Shah Chandrakanth
S/o Mangal Das.
(Sri.Vasanth Kumar.N., Adv)
Case instituted : 19.02.2020
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 27.03.2024
JUDGMENT
The Complainant has filed this complaint against the accused under the provision of Sec.200 of Cr.P.C. for the offence punishable U/Sec.138 of the Negotiable Instruments Act.
2. The case of the complainant is as under:-
3 CC.No.19492/2023The complainant and the accused were known to each other from past 5 to 6 years. The accused had came to Bengaluru in the year 2014 and he had no work and therefore, the accused had requested the complainant to set up a business for him. Since the accused and the complainant are from the same village and also belong to the same community and in view of friendship, the complainant and other community members had assisted the accused by providing a financial support and other needs to put up the business and thereby the accused is able to run a business - condiments shop in the name and style of 'Padmavati Namkeens'.
3. It is further averred in the complaint that the complainant is running a wholesale business in the name and style of LIVE IN HASTIMAL GHEEWAL since 10 years by supplying the provisions to customers. The accused had approached the complainant in the month of August 2019 and requested for loan of Rs.2 lakhs to improve his business and also requested the complainant to supply the provisions on credit basis. Therefore, the complainant has supplied the provisions on credit basis for total amount of Rs.78,939/-. The complainant has also paid an amount of Rs.1,75,000/-
4 CC.No.19492/2023to the accused through RTGS on 17.08.2019. The accused has agreed to repay the amount within 2 months. But, the accused has failed to pay the amount within time. On demand, the accused had issued 3 cheques bearing No.000204 dated 23.12.2019 for Rs.1,00,000/-, cheque bearing No.000205 dated 30.12.2019 for Rs.1,00,000/- and cheque bearing No.000207 dated 07.01.2019 for Rs.50,000/-, drawn on Kotak Mahindra Bank, Vishwarapuram Branch, Bengaluru in favour of the complainant towards the repayment of loan. The complainant has presented the cheques for encashment before the Vijaya Bank, Gandhi Bazar Branch, Bengaluru. But the cheques were dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 18.01.2020 and with an endorsement as 'instrument out dated/stale'. The complainant got issued a legal notice on 28.01.2020 to the accused calling upon the accused to make the payment covered by the said cheques within 15 days from the date of receipt of the notice. The notice was served on the accused on 30.01.2020. But, in spite of service of legal notice, the accused had failed to pay the cheques amount and thereby committed an offence punishable U/s.138 of 5 CC.No.19492/2023 N.I.Act. Hence, the complainant has presented the complaint before the court on 19.02.2020.
4. After presentation of complaint, it was ordered to be registered as PCR No.2624/2020. The sworn statement of the complainant has been recorded as PW-1 and the documents were got marked as per Ex.P.1 to P.16.
5. This Court having heard the arguments of the learned counsel for the complainant and on perusal of complaint allegations, sworn statement of complainant and the documents at Ex.P1 to P16 and having satisfied with the materials placed on record, has taken the cognizance for the offence punishable U/s.138 of N.I.Act and and the case was ordered to be registered as C.C.No.19492/2023 and the process was issued to the accused vide order dated 28.07.2023.
6. On service of summons, the accused has appeared before the court through his learned counsel and obtained the bail by depositing cash surety of Rs.2,500/- vide Q No.15456 dated 07.10.2023. The copies of prosecution papers were supplied to accused.
7. The plea of accused for the offence punishable U/s.138 of N.I.Act has been recorded on 07.10.2023 6 CC.No.19492/2023 and the substance of accusation has been read over and explained to the accused in the language known to him. But on being plea recorded, the accused has pleaded not guilty but claimed to be tried.
8. In order to prove the case against the accused, the complainant has been examined as PW.1 and got marked the documents Ex.P.1 to Ex.P.16.
9. It is at this stage of proceedings and when the case was set down for cross of PW.1, the complainant and the accused by representing by their respective learned counsels have settled the dispute before the court and the accused has admitted the issuance of the cheque in favour of the complainant and settled the matter amicably for a sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) as full and final settlement and the accused has agreed to pay an amount of Rs.2,50,000/- to the complainant in 3 installments @ Rs.50,000/-, Rs.1,00,000/- and Rs.1,00,000/- respectively by way of cheque bearing No.000015 dated 27.03.2024 for Rs.50,000/-, cheque bearing No.000016 dated 30.06.2024 for Rs.1,00,000/- and cheque bearing No.000017 dated 30.08.2024 for Rs.1,00,000/-, drawn on IDFC First Bank, Banashankari 3rd Stage Branch, Bengaluru. The 7 CC.No.19492/2023 complainant has also agreed for the same and both complainant and accused prayed to pass the judgment by taking into consideration of the terms and conditions of the joint memo.
10. I have heard the arguments and perused the complaint, evidence, documents and the joint memo submitted before the court.
11. Now the points that would arises for my consideration are as follows:-
1. Whether the complainant proves that he and accused have settled the dispute for Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) as per the joint memo and the terms and conditions of joint memo are just and reasonable and acceptable to both the parties and whether the joint memo filed by both the parties is deserves to be accepted?
2. What Order?
12. On considering the material placed on record, now my answer to the above points are as under:
Point No.1: In the Affirmative. Point No.2: As per final order for the following:
REASONS 8 CC.No.19492/2023
13. Point No.1: Before appreciation of the facts, oral and documentary evidence placed on record including terms and conditions of joint memo, it is relevant to mention that under the criminal jurisprudence, the prosecution is required to establish the guilt of the accused beyond all reasonable doubts. However, the proceeding U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings, proof of beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 146 of N.I.Act.
14. The essential ingredient of Sec. 138 of N.I.Act is that where 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 committed an offence. The offence U/s.138 of N.I. Act pre-supposes 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 9 CC.No.19492/2023
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
[
15. It is after compliance of above said three conditions, the holder in due course of the cheque gets cause action to launch prosecution against the drawer of the bounced cheque. As per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which the cause of action arise to file a complaint.
16. 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 liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions. As per section 118 of the Act, a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument.
17. As per Section 139 of the N.I.Act, a rebuttable presumption shall be raised to the effect 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.
10 CC.No.19492/2023The said presumptions are not conclusive, but, they are rebuttable one. These proposition 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.
18. In the present case, the complainant has produced 3 cheques dt:23.12.2019, 30.12.2019 and 07.01.2019, 3 bank memos dated 18.01.2020, legal notice dated 28.01.2020, 2 postal receipts dated 29.01.2020, returned notice dated 28.01.2020, postal cover, postal receipt, postal acknowledgment and complaint and they are marked at Ex.P.1 to P.16. The complainant has stated about the issuance of cheques by the accused, presentation of cheques, dishonour of cheques for want of sufficient funds in the account of the accused and also with an endorsement as 'outdated cheque/stale'. It is further stated by the complainant that after receipt of memo from the bank, he has issued a legal notice on 28.01.2020 through his advocate to the accused which has been served on the accused. But, even after issuance of notice and service of notice, the accused has not made any payment to him. On careful perusal of the documents produced by the complainant, it is clear that the complainant has complied the procedural requirements as contemplated U/s.138 of the Negotiable Instrument Act.
11 CC.No.19492/202319. It is relevant here to mention that the accused and the complainant have settled the dispute and the accused has admitted the issuance of cheques in question in favour of the complainant and also admitted his liability to discharge the legally recoverable debt as claimed by the complainant in his complaint. The complainant and the accused have also stated that they have amicably entered into compromise in this case by the advise of well wishers and the complainant and accused have voluntarily agreed to the terms and conditions of joint memo and it is duly signed by them and their respective counsels. On enquiry, the complainant and the accused have 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.
20. Though the accused has denied the transaction in question and also issuance of the cheques in question in favour of the complainant towards the discharge of the loan amount in question in his plea, but in the joint memo, the accused has clearly admitted the issuance of cheques in favour of the complainant and also liability to pay the loan amount in question in favour of the complainant.
12 CC.No.19492/202321. The complainant has proved that he has paid an amount of Rs.2,50,000/- to the accused and the accused in-turn has issued cheques in question towards the discharge of the said amount in question and also proved that the cheques in question has been presented within its validity period and after receipt of the bank endorsements, the complainant got issued legal notice to the accused within 30 days from the date of receipt of bank memos and the said notice sent through RPAD was served on the accused. But, in spite of service of legal notice, the accused has failed to pay the cheques amount. Hence, the complainant has complied all the mandatory requirements as required U/s.138 (a) to (c) of N.I.Act and initial presumption can be drawn against the accused that he has committed an offence punishable U/s.138 of N.I.Act.
22. It is also seen from the terms and conditions of the joint memo, the complainant and the accused have settled their dispute for a sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) as full and final settlement and the accused has agreed to pay an amount of Rs.2,50,000/- to the complainant in 3 installments @ Rs.50,000/-, Rs.1,00,000/- and Rs.1,00,000/- respectively by way of cheque bearing 13 CC.No.19492/2023 No.000015 dated 27.03.2024 for Rs.50,000/-, cheque bearing No.000016 dated 30.06.2024 for Rs.1,00,000/- and cheque bearing No.000017 dated 30.08.2024 for Rs.1,00,000/-, drawn on IDFC First Bank, Banashankari 3rd Stage Branch, Bengaluru. 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.
23. 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 No.1 is answered in the Affirmative.
24. Point No.2: In the light of the discussions made in the above point and as per the terms and conditions 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 :-
14 CC.No.19492/2023OR DER Acting U/sec.264 of Cr.P.C. the accused is acquitted for the offence punishable U/sec.138 of Negotiable Instruments Act.
The accused is directed to pay an amount of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) to the complainant in 3 installments @ Rs.50,000/-, Rs.1,00,000/- and Rs.1,00,000/- respectively by way of cheque bearing No.000015 dated 27.03.2024 for Rs.50,000/-, cheque bearing No.000016 dated 30.06.2024 for Rs.1,00,000/- and cheque bearing No.000017 dated 30.08.2024 for Rs.1,00,000/-, drawn on IDFC First Bank, Banashankari 3rd Stage Branch, Bengaluru without fail.
In the event of the accused failed to pay above said amount within stipulated period, the complainant is at liberty to recover the same as if fine as contemplated under the provisions of Sec.421 R/w Sec.431 of Cr.P.C.
The Bail bond of the accused stands cancelled forthwith.
The cash surety of Rs.2,500/-
deposited by the accused vide Q.No.15456 dated 07.10.2023 is ordered to be refunded to the accused after expiry of appeal period with due identification and also with due verification of documents.
15 CC.No.19492/2023(Directly dictated to the Stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 27th March 2024).
(SRI.N.M.RAMESHA), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Mr.Hiralal.S
2. List of documents exhibited on behalf of the Complainant:-
Ex.P.1 to 3 : Original Cheques.
Ex.P.1(a) to : Signatures of the accused.
3(a)
Ex.P.4 to 6 : Bank memos.
Ex.P.7 : Office copy of the Legal Notice.
Ex.P.8 & 9 : Postal Receipts.
Ex.P.10 : Returned Notice.
Ex.P.11 : Postal Cover.
Ex.P.12 : Postal Receipt.
Ex.P.13 : Postal Acknowledgment.
Ex.P.14 : Letter to Postal Department.
Ex.P.15 : Acknowledgment given by postal
department.
Ex.P.16 : Complaint.
16 CC.No.19492/2023
3. List of witness/s examined on behalf of the Accused:-
NIL
4. List of documents exhibited on behalf of the Accused:-
NIL (SRI.N.M.RAMESHA), *rjl XVI ACMM, Bengaluru City.17 CC.No.19492/2023
27.03.2024 Judgment pronounced in open court, (vide separate order) ORD ER Acting U/sec.264 of Cr.P.C. the accused is acquitted for the offence punishable U/sec.138 of Negotiable Instruments Act.
The accused is directed to pay an amount of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) to the complainant in 3 installments @ Rs.50,000/-, Rs.1,00,000/- and Rs.1,00,000/- respectively by way of cheque bearing No.000015 dated 27.03.2024 for Rs.50,000/-, cheque bearing No.000016 dated 30.06.2024 for Rs.1,00,000/- and cheque bearing No.000017 dated 30.08.2024 for Rs.1,00,000/-, drawn on IDFC First Bank, Banashankari 3rd Stage Branch, Bengaluru without fail.
In the event of the accused failed to pay above said amount within stipulated period, the complainant is at liberty to recover the same as if fine as contemplated under the provisions of Sec.421 R/w Sec.431 of Cr.P.C.
The Bail bond of the accused stands cancelled forthwith.
18 CC.No.19492/2023The cash surety of Rs.2,500/-
deposited by the accused vide Q.No.15456 dated 07.10.2023 is ordered to be refunded to the accused after expiry of appeal period with due identification and also with due verification of documents.
XVI ACMM, Bengaluru City