Bangalore District Court
M/S. Kishandas Jethanand vs M/S.Southern Batteries on 9 April, 2021
IN THE COURT OF THE XXVII ADDL., CHIEF
METROPOLITAN MAGISTRATE, BANGALORE.
Present: Sri. N.Muniraja. B.A., L.L.M.,
Dated: This the 9th Day of April 2021
C.C.No.15149/2019
Complainant M/S. KISHANDAS JETHANAND .,
No.134-138, S.P. Road,
Bengaluru - 560002
A Registered Partnership Firm,
Represented by its Partner
Mr. Mahesh K Chawla
(Reptd by Sri. Satish M.G. Adv.,)
Accused 1. M/S.SOUTHERN BATTERIES
PVT LTD.,
No.328, Bommasandra Jigani
Link Road,
Industrial Area,
Jigani Anekal Taluk,
Bengaluru 560106.
Represented by its Director:
Sri. Sudarshan
2. Mr. R. SUDARSHAN
S/o. Raghavan Pillai,
Director:
M/S.SOUTHERN BATTERIES
PVT LTD.,
No. 172, Harmony Classic Orchids,
Phase I, Behind Meenakshi Temple,
Bengaluru 560076.
2 C.C.No. 15149/2019
(Reptd by Sri. Anil Kollath Adv.,)
Offence U/s.138 of Negotiable Instruments Act.
Plea of the Pleaded not guilty
accused
Final Order Convicted
Judgment Date 09/04/2021
*****
JUDGMENT
The complainant Partnership Firm filed this complaint against the accused for the offense punishable U/s.138 of the Negotiable Instruments Act.
2. Brief facts of the complainant case are as follows:-
The accused No. 2 is the Director of and in charge of day to day affairs of the accused No.1 Company. The accused No.2 approached the complainant and borrowed a sum of Rs.20,00,000/- on 07/04/2018 for business purpose. The accused No.2 has availed the said amount by way of RTGs cheque bearing No. 003063 dated: 07/04/2018 3 C.C.No. 15149/2019 drawn on Vijaya Bank and he has executed On Demand Promissory Note and Consideration Receipt in favour of the complainant for receipt of the said amount. In response to repeated requests and demands towards part payment the accused issued Four cheques bearing No. 340122 dated:
28/02/2019, 340123 dated: 03/03/2019, 340124 dated: 13/03/2019 and 340125 dated: 23/03/2019 for Rs.2,00,000/- each drawn on Axis Bank Ltd., Electronic City Branch, Bengaluru. The complainant presented the said cheques for encashment through its Banker Vijaya Bank, West of Chord Road Branch, Bengaluru and the same were dishonoued for the reason "Funds Insufficient"/Drawers Signature Differes vide memo dated: 16/04/2019. The complainant got issued legal notice dated: 13/05/2019 through RPAD and the said notice served to the accused No.2 on 14/05/2018 and in spite of receipt of notice the 4 C.C.No. 15149/2019 accused have not paid the cheques amount. Hence, this complaint.
3. Sworn statement Affidavit of the Partner/Authorized Representative of the complainant recorded as PW1 and got marked Ex.P1 to P18, documents and ordered summons to the accused. The accused appeared through their advocate and accused No.2 enlarged on bail. Substance of accusation read over to the accused No.2 and he pleads as false. In view of the decision of the Hon'ble Supreme Court of India, reported in (2014) 5 SCC 590 (Indian Bank Association & Ors V/s. Union of India & Ors) sworn statement affidavit of PW1 is treated as chief examination of the complainant side. The accused filed application U/sec. 145(2) of the Negotiable Instruments Act seeking permission for cross-examination of the complainant and allowed the same. In spite of an 5 C.C.No. 15149/2019 opportunities on behalf of the accused not cross- examined the PW1 and posted the case for recording of statement U/sec. 313 of Cr.P.C.,. Statement of the accused recorded and he claimed for defense evidence. At that stage, the accused filed application U/sec. 311 of Cr.P.C., seeking permission for cross-examination of PW1 and the same was allowed and posted the case for cross-examination of PW1 on 09/04/2021. At this stage on 09/04/2021 both the complainant and accused have filed a joint memo stating that they have got settled the matter and the accused agreed to pay cheques amount of Rs.8,00,000/- to the complainant in 6 installments on 05/06/2021, 05/07/2021, 05/08/2021 and 05/09/2021 of Rs.1,00,000/- each and on 05/10/2021 and 05/11/2021 of Rs.2,00,000/- each and in default of payment the complainant is at liberty to take appropriate legal action against the 6 C.C.No. 15149/2019 accused and prays to pass the judgment as per the terms of the Joint memo.
4. Heard and perused the records.
5. The points that would arise for my consideration are as follows:
(i) Whether the accused is liable to be convicted in terms of the Joint Memo?
(ii) What order?
6. My answer to the above points are as follows:-
Point No.1 : In the Affirmative Point No.2: As per the final order, for the following:-
REASONS
7. Point No.1: It is the case of the complainant that, the accused issued Ex.P5 to 8 cheques towards repayment of the part of amount of Rs.20,00,000/- borrowed on 07/04/2018 and the said cheques dishonoured for the reason "Funds 7 C.C.No. 15149/2019 Insufficient"/Drawers Signatures Differs and in spite of service of notice by the complainant, the accused not paid the cheques amount. PW1 who is the Authorized Representative of the complainant Partnership Firm in his evidence affidavit has reiterated the contents of the complaint averments. Through PW1 got marked Ex.P1 Authorization Letter, Ex.P2 On Demand Promissory Note, Ex.P3 Letter issued by Bank of Baroda, Ex.P4 Statement of Account issued by Bank of Baroda, Ex.P5 to 8 Cheques, Ex.P9 to 12 Bank endorsements, Ex.P13 Office copy of notice dated: 13/05/2019, Ex.P14 to 16 Postal Receipts, Ex.P17 Copy of complaint given to the Postal Department, Ex.P18 Extract of Register of Firms of the complainant Firm. Though, the accused No.2 at the time of recording of plea, pleads as false but in the course of statement U/sec. 313 of Cr.P.C., clearly admits that he is the Director and Incharge of Day today affairs of the accused No.1 8 C.C.No. 15149/2019 Company and also admits the borrowing of Rs.20,00,000/- from the complainant and issuance of the cheques in question infavour of the complainant towards part payment of the said amount of Rs.20,00,000/-. Subsequently, when the case was set down for cross-examination of PW1 both the complainant and accused have filed a joint memo stating that they have got settled the matter and the accused agreed to pay cheques amount of Rs.8,00,000/- to the complainant in 6 installments on 05/06/2021, 05/07/2021, 05/08/2021 and 05/09/2021 of Rs.1,00,000/- each and on 05/10/2021 and 05/11/2021 of Rs.2,00,000/- each and in default of payment the complainant is at liberty to take appropriate legal action against the accused and prays to pass the judgment as per the terms of the Joint memo. The accused in the joint memo admits the liability of payment of the cheques amount to the complainant.
9 C.C.No. 15149/2019
8. The materials placed on record by the complainant goes to show that after dishonour of cheques in question the complainant by serving demand notice to the accused has complied mandatory requirement of Sec.138(b) of N.I Act. As discussed above, both the complainant and the accused have filed Joint Memo and wherein the accused has agreed to pay an amount of Rs.8,00,000/- to the complainant towards the cheques in question in 6 installments and the complainant has agreed for the same. Hence, I answer Point No.1 in the Affirmative.
9. Point No.2:- In the Joint Memo filed herein, the accused has admitted the liability of payment of Rs.8,00,000/- to the complainant towards the cheques in question and in the result, I proceed to pass the following:-
10 C.C.No. 15149/2019
ORDER Joint memo filed by both the complainant and accused is allowed.
Acting U/s.265 of Cr.P.C. the accused convicted for the offence punishable U/s.138 of the N.I Act and they shall pay the balance cheque amount of Rs.8,00,000/- to the complainant in six installments, as stated in the Joint Memo.
In default of payment of the said amount by the accused the complainant can recover the same, as if fine amount. (Dictated to the stenographer on computer and then pronounced in open court by me on this the 9th day of April, 2021) (N. Muniraja) XXVII A.C.M.M., Bangalore.
ANNEXURE Witnesses examined on behalf of the complainant:
PW1 : MAHESH K CHAWLA Documents marked on behalf of the complainant:
Ex.P1 : Authorization Letter
11 C.C.No. 15149/2019
Ex.P2 : On Demand Promissory Note
Ex.P3 : Letter issued by Bank of Baroda
Ex.P4 : Statement of Account issued by
Bank of Baroda
Ex.P5 to 8 : Cheques
Ex.P.5(a) to 8(a): Signatures of the accused No.2
Ex.P9 to 12 : Bank endorsements
Ex.P13 : Office copy of notice dated:
13/05/2019
Ex.P14 to 16 : Postal Receipts
Ex.P17 : Copy of complaint given to the
Postal Department
Ex.P18 : True Extract of Register of Firms
of the complainant Firm.
Witnesses examined on behalf of the accused:
Nil Documents marked on behalf of the accused:
Nil XXVII A.C.M.M Bengaluru.12 C.C.No. 15149/2019
09/04/2021.
Comp:
Accd:
For Judgment.13 C.C.No. 15149/2019
(Order typed vide separate sheet) ORDER Joint memo filed by both the complainant and accused is allowed.
Acting U/s.265 of Cr.P.C. the accused convicted for the offence punishable U/s.138 of the N.I Act and they shall pay the balance cheque amount of Rs.8,00,000/- to the complainant in six installments, as stated in the Joint Memo.14 C.C.No. 15149/2019
In default of payment of the said amount by the accused the complainant can recover the same, as if fine amount.
(N.Muniraja) XXVII A.C.M.M., Bengaluru..