Bangalore District Court
M/S Suyambu Enterprises vs M/S Spindle on 6 March, 2024
CC.No.6186/2023
KABC030100482023
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE
Dated this the 6th day of March, 2024
Present:
Present: Smt. Gayathri S Kate,
B.Com., LL.B.
XII Addl. Chief Metropolitan Magistrate,
Bangalore.
C.C.No. 6186/2023
Complainant : M/s.Suyambu Enterprises,
(Proprietorship Firm)
No.3, 16th Cross, Muthyal Nagar,
Bengaluru560054
Rep.by its Sole Proprietor,
Sri.Lingam S.K.,
Aged about 40 years,
S/o.K.Sadashivan,
Mob. NO.9886628666
(By K.D.K., Advocate)
V/s
Accused : M/s. Spindle,
(Proprietorship Firm)
Flat No.608, 6th Floor,
Souparnika Building, Sarjapur Road,
Bengaluru560035,
Rep.by its Sole Proprietor,
Sri.Vinod Kanaran,
Aged Major,
(By P.S., Advocate )
2
CC.No.6186/2023
Plea of accused: Pleaded not guilty
Final Order: Accused is Convicted
Date of judgment : 06.03.2024
JUDGMENT
The complainant filed the complaint under Sec.200 Cr.P.C. against the accused for the offence punishable under Sec.138 Negotiable Instruments Act (For short N.I.Act).
2. The brief facts of the complainant case is as under:
Accused having business dealings with complainant and purchasing on credit basis. The accused placed various orders and was in due of Rs.3,86,580/ towards principle plus Rs.66,100/ towards interest and thus totally in due of Rs.4,52,680/. In discharge of such dues the accused issued two cheques bearing No.000024 and No.000025 for Rs.1,93,290/ each and both dated 10.11.2022. Both the cheques were drawn on Kotak Mahindra bank, M.G.Road Branch, Bengaluru. As per instruction of the accused complainant presented above 3 CC.No.6186/2023 said cheques for encahsment on 18.01.2023 through his banker and received memo on 19.01.2023 with endorsement as "Funds Insufficient". Accused assured about honour of cheques but said cheques were dishonored. Thereafter, the complainant issued legal notice dated 24.01.2023 to the accused by calling upon him to pay the amount covered under the cheques within the stipulated period. Inspite of service of notice, accused failed to repay the amount covered under cheques. Hence, the complainant constrained to file the present complaint against the accused for the offence punishable under section 138 of Negotiable Instrument Act.
3. After filing of the complaint, cognizance has been taken and sworn statement recorded and got marked the documents as Ex.P.1 to Ex.P.9. The complainant has complied all the statutory requirements under Sec.138 of N.I.Act. On the other hand, accused has not complied with the demand notice issued by the complainant nor made the payment within the stipulated period. 4
CC.No.6186/2023 Thereafter, the case is registered against the accused and summons issued. Pursuant to issuance of summons, the accused appeared through his Counsel and enlarged on bail. Plea recorded.
4. Subsequently, when the matter was posted for cross of PW.1, at that time, both parties appeared before the court and filed a Joint Memo as matter was amicably settled between the parties out of the court. The parties submitted before the court that they agree to the Joint memo terms. Both the side prayed to pass judgment taking into consideration the joint memo filed by the parties.
5. Heard arguments and perused the material on record.
6. On the basis of the contents of the complaint the following points arise for my consideration :
1. Whether the complainant proves that the accused has committed an offence punishable U/s.138 N.I Act as alleged in the complaint?
2. Whether both the complainant and the accused have settled the dispute by way 5 CC.No.6186/2023 of filing joint memo for a sum of Rs.4,00,000/?
3. What order?
7. My findings to the above points are as follows:
Point No.1 & 2 : In the affirmative.
Point No.3 : As per final order
for the following.
REASONS
8.Point No.1&2 : The complainant filed the complaint alleging that accused has availed loan of Rs.4,52,580/ from the complainant. Accused failed to keep his assurance and issued cheques in dispute. The said cheques were dishonored. Thereafter complainant issued legal notice, despite of service of notice accused fail to comply it. The accused committed an offence punishable U/s.138 Negotiable Instrument Act. After recording the sworn statement and pursuant to issuance of summons, the accused appeared through his counsel and enlarged on bail. Plea substance is read over and explained, accused pleads not guilty and claimed for trial. Subsequently, during trial, complainant lead 6 CC.No.6186/2023 evidence and got marked the documents as Ex.P.1 to Ex.P.9 and when the matter was posted for cross of PW.1 both the parties appeared through their respective counsel and filed joint memo on 03.02.2024. Under the joint memo the accused agreed to pay a settlement of Rs.4,00,000/ to the complainant. Today the accused paid amount of Rs.2,00,000/ by way of DD bearing No.041238, drawn on HDFC Bank dated: 20.02.2024 to the complainant and remaining balance of Rs.2,00,000/ on or before 15.03.2024.
9. In this case, it is to be considered by the court that whether the mandatory requirement as mentioned u/s.138 Negotiable Instrument Act has been complied with or not. The cheques issued by the accused is dated 10.011.2022 and the Bank endorsements is dt.19.01.2023. That on 24.01.2023 the legal notice is issued through RPAD. The complaint is filed on 06.03.2023. It is evident that the cheques were presented for encashment within the valid time. Notice demanding the cheques amount and filing of the complaint before 7 CC.No.6186/2023 the court after service of notice are within the period specified. Hence, provisions mentioned under Sec.138 of N.I.Act is duly complied with. Consequently, legal presumption u/s.139 & 118 of N.I.Act exists in favour of the complainant. But during trial when reasonable opportunity is extended in favour of the accused to rebut the above said legal presumption, at that time, both the parties approached with joint memo. Therefore, it is crystal clear that the accused has not paid the cheques amount and admits the guilt.
10. Upon appreciation of the materials, this court is of the opinion that the accused failed to prove that he has not issued the cheques towards discharge of legally enforceable debt. On the contrary, the complainant has proved that the accused issued the cheques in question towards discharge of legally enforceable debt. When the said cheques were presented the same has been dishonored. Hence in this regard a notice has been issued against the accused. Despite service of notice, the accused has not paid the cheques amount nor replied 8 CC.No.6186/2023 to the notice. Hence, the court is of the opinion that the complainant has material evidence in order to prove guilt of the accused, as accused has committed an offence punishable u/s.138 Negotiable Instrument Act.
Subsequently, both the parties settled the case by way of joint memo. Hence, Point No.1 & 2 are answered in the Affirmative.
11 . Point No.3 : In view of the discussion made supra, the court is of the opinion that the complainant has proved that the accused committed an offence punishable u/s.138 Negotiable Instrument Act. The joint memo has been filed by the complainant and the accused before this court. Hence, accused admitted guilt. Hence, admitted facts need not be proved. As per joint memo accused agreed to pay settled amount of Rs.4,00,000/ to the complainant. Today the accused paid amount of Rs.2,00,000/ by way of DD bearing No.041238, dated:
20.02.2024 to the complainant and remaining balance of Rs.2,00,000/ on or before 15.03.2024. Further both the parties i.e the complainant and the accused have 9 CC.No.6186/2023 requested to pass the judgment for payment of agreed amount as per the joint memo as compensation to the complainant. Hence, in view of this I proceed to pass the following :
ORDER Acting u/s.264 Cr.P.C , the accused is hereby convicted for the offence punishable u/s.138 Negotiable Instrument Act and accused is sentenced to pay fine of Rs.4,00,000/ to the complainant as under towards full and final settlement.
As per Joint memo the matter has been settled amount of Rs.4,00,000/ as full and final settlement. Today the accused paid amount of Rs.2,00,000/ towards part payment and agreed to pay the balance settled amount of Rs.2,00,000/ on or before 15.03.2024.
In default of payment of said amount the complainant is at liberty to take legal action against the accused as per law and recover double the cheques amount.
The fine amount shall be paid to the complainant as compensation u/s.357 of Cr.P.C.
The contents of the memo is part and parcel of the judgment.10
CC.No.6186/2023 The bail bond of the accused and that of his surety if any stand canceled automatically on payment of entire amount.
The office is hereby directed to supply free copy of the judgment to the accused.
(Dictated to the Stenographer directly on the computer, typed by her, corrected and signed then pronounced by me in the open court on this the 6th day of March, 2024).
(Smt. Gayathri S kate) XII A.C.M.M., BANGALORE.
ANNEXURE LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
PW 1 : Lingam S.K LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 & 3 : Cheques
Ex.P.2 & 4 : Endorsements
Ex.P.5 : Legal Notice
Ex.P.6 : Postal Receipt
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CC.No.6186/2023
Ex.P.7 : Track Consignment
Ex.P.8 : 65(B) of Indian Evidence Act Ex.P.9 : Tax Invoice LIST OF WITNESSES EXAMINED FOR THE ACCUSED: Nil LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
Nil
Digitally signed
by GAYATHRI S
KATE
GAYATHRI Date:
S KATE 2024.03.11
04:41:04
+0530
(Smt. Gayathri S kate)
XII A.C.M.M., BANGALORE.
12
CC.No.6186/2023
Wherefore, I most respectfully pray that this Hon'ble Court may be pleased to secure the presence of the accused, try and punish him for the offence committed by him under sEc