Bangalore District Court
Smt. Vidya Jayaramu vs Sri. Shivakumaraswamy on 29 November, 2021
1 C.C.No.21250/2017 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 29th day of November, 2021
Present: SRI.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.21250/2017
Complainant : Smt. Vidya Jayaramu,
W/o. Jayaramu T.N,
Aged about 40 years,
Represented by GPA Holder,
Sri.Jayaramu T.N,
S/o.Narayanagowda.D,
Aged about 49 years,
Occupation : IT Manager,
Residing at :
No.334, 3rd Main,
J.P.Nagar 3rd phase,
Bengaluru 560 078.
(By by Sri. V.S.Narayana., Adv)
Vs
Accused : Sri. Shivakumaraswamy,
S/o. Gadi Chennaiah,
Aged about 40 years,
Residing at :
No.608, Belavadi Village,
2nd Block, Yelwala Hobli,
Mysore Taluk,
Mysore.
2 C.C.No.21250/2017 J
Presently Residing at:
No.3293, "Chacha Nilaya",
Vijayanagar 4th Stage, 2nd Phase,
Mysore.
(Rep. by Sri. Basavaraju., Advs.)
Case instituted 14.08.2017
Offence complained U/s 138 of N.I Act
of
Plea of Accused Pleaded not guilty
Final Order Accused is convicted
Date of order 29.11.2021
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable U/sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, complainant being a project owner and proprietor of Manuja Matha extension in which over the landed property bearing Sy.Nos. 347 and 355 to the extent of 04 acres 08 guntas by forming numerous sites at Belavadi Village, Yelwala Hobli, Mysore Taluk, Mysore and the accused has offered to the public at large for sale after being developing the same through Sir M.V. Developers and Builders, Mysuru and in connection to 3 C.C.No.21250/2017 J purchase of site from the accused, his acquainted person and brotherinlaw Mr.Prasad introduced complainant to the accused at the accused aforementioned extension. It is further contended by the complainant that, after receiving the sale consideration amount of Rs.2,50,000/= on 15.9.2011 and Rs.2,50,000/= on 9.8.2011 and Rs.5,00,000/= on 28.3.2011, whereby the accused totally received Rs.10 Lakhs through the Joint account of the complainant and her husband ie.,Special Power of Attorney holder, to that, the accused have acknowledged the receipt of the same through his forwarded corresponding letter to the complainant on 5.1.2013, wherein the accused have disclosed that in Sl.No.13 site No.24 measuring 30 x 40 feet allotted in favour of the complainant, but even after receipt of the sale consideration and provisional allotment of the site in favour of the complainant, the accused have failed to proceed further by way of culminating of the same into execution of registered sale deed after requiring and receiving of any existing balance from the complainant. It is further contended by the complainant that, the complainant together with her husband Mr.Prasad visited the office of the accused on 23.4.2017, at the very moment, the accused 4 C.C.No.21250/2017 J expressed the hurdles and problems arose in completing formation of proposed extension, made request to them, to take refund of the entire sale consideration which has been received by the accused from the complainant together with accruable interest and damages towards the cause of loss occurred to the complainant in valuating present market value arised out of, when the accused expressed his desire, that he is going to retreating from his offer for sale by cancelling provisional allotment of site as allotted to the complainant and her compassions after accused's own calculation of interest and damages, the accused gathered to and offered to refund in around up of Rs.20 Lakhs and with the acceptable of accused's proposal and at the demand of the complainant, the accused has issued post dated cheque bearing No. 486721 dated: 10.5.2017 for Rs.20 Lakhs drawn on ING Vysya Bank Ltd., Jayalaskhmipuram Branch, Kalidasa Road, V.V.Mohalla, Mysuru in favour of the complainant and as per the assurance and directions of the accused, complainant has presented the said cheque for encashment through her banker, the said cheque was returned unpaid and dishonoured for the reason of "Account closed" vide bank Memo dated:
5.6.2017, thereafter the complainant and her husband 5 C.C.No.21250/2017 J personally informed the said fact to the accused by twice visiting to his place, but the accused had not come forwarded to comply the request of the complainant. It is further contended by the complainant that, thereafter she got issued a legal notice to the accused on 30.6.2017 through RPAD calling upon the accused to pay the cheque amount to the complainant within 15 days from the date of the receipt of the said legal notice but the said legal notice was returned with postal shara "refused, hence returned to sender" on dated: 3.7.2017 and the notice sent to the second address of the accused, but again it returned with postal shara "Addressee Left returned to sender" on 6.7.2017, inspite of that, the accused has failed to repay the cheque amount to the complainant.
Hence the present case is filed by the complainant against the accused praying that the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
3. Before issuing process against the accused, the GPA holder of the Complainant is examined as PW.1 and he has filed his affidavitinlieu of sworn statement, in which, he has reiterated the averments of the complaint. In support of his evidence has relied 6 C.C.No.21250/2017 J upon the documentary evidence as per Ex.C.1 to C.17, i.e., General Power of Attorney as per Ex.C.1, Original Cheque dated: 10.5.2017 as per Ex.C.2, the signature on the said cheque identified by P.W.1 is that of the accused as per Ex.C.2(a), Bank Memo as per Ex.C.3, the office copy of the Legal Notice as per Ex.C.4, postal receipts as per Ex.C.5 and C.6 respectively, returned legal notice as per Ex.C.7 and C.8 respectively, postal envelopes as per Ex.C.9 and C.10, postal receipts as per Ex.C.11 and C.12 , postal acknowledgement as per Ex.C.13, letter dt: 8.10.2011 issued by the land owner as per Ex..14, letter dt: 6.1.2012 issued by the land owner as per Ex.C.15, letter dt: 5.1.2013 issued by the land owner as per Ex.C.16, pass book as per Ex.C.17.
4. Primafacie case has been made out against the accused and summons was issued against the accused in turn he has appeared before the court and got enlarged on bail and thereafter substance of accusation read over and explained to the accused, the accused denied the accusation and claim to be tried, hence the case was posted for recording of crossexamination of complainant.
7 C.C.No.21250/2017 J5. As per the direction of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the Accused, as he intended to set out his defence, the case came to be posted for the Crossexamination of complainant.
6. Thereafter the statement of the accused as required U/s.313 of Cr.P.C. recorded and accused has denied the incriminating circumstances appearing against him in the evidence and has choose to lead his evidence and himself examined as DW.1 and has not produced any documents and closed his side.
7. It is relevant here to mention that, when the case was posted for cross examination of DW.1 during that time, the complainant and the accused by representing by their respective counsels have filed Joint Memo before the court on 27.11.2021 by admitting the issuance of the cheque by the accused and liability of the accused, the accused has agreed to pay the settled amount of Rs.15,00,000/ (Rupees Fifteen Lakhs only) to the complainant towards full and final settlement ie., the accused has paid Rs.1,50,000/ to the complainant on 27.11.2021 8 C.C.No.21250/2017 J and the accused has agreed to pay remaining amount of Rs.13,50,000/ within 5 months ie., on or before 20th April 2022 and complainant has also agreed for the same and both complainant and accused prayed to pass the judgment by taking into consideration of the terms of the joint memo.
8. Heard and perused the evidence and documents and Joint memo submitted by the complainant and the accused, the following points that are arise for consideration:
1. Whether the complainant proves that the accused has issued cheque bearing No.486721 dt: 10.05.2017 for a sum of Rs.20,00,000/ drawn on ING Vysya Bank Ltd., Jayalakshmipuram Branch, Kalidasa Raod, V.V.Mohalla, Jayalakshmipuram, Mysore 560 002 to discharge legally recoverable debt to the complainant and when the complainant has presented cheques for encashment through his banker but the said cheque was returned dishonoured for the reason "Account closed" on 05.06.2017 on The complainant issued legal notice to the accused on 30.06.2017 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence 9 C.C.No.21250/2017 J U/s.138 of the Negotiable instruments Act?
2. What Order?
9. The above points are answered as under:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
REASONS
10. Point No.1: Before appreciation of the facts and oral and documentary evidence in the present case, it is relevant to mention that, under criminal jurisprudence prosecution is required to establish guilt of the accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 146 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether 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 been committed an offence. The offence U/s.138 of N.I. Act presupposes three conditions for prosecution of an offence which are as under: 10 C.C.No.21250/2017 J
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
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
11. 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 i.e.,U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 11 C.C.No.21250/2017 J 'endorsement' and holder in course of Negotiable Instrument. Even U/Sec.139 of the Act are rebuttable presumptions shall be raised 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, but the said presumptions are not conclusive and or rebuttable one, this proportion 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.
12. In the present case, the GPA holder of the complainant himself examined as PW.1 by filing his affidavit evidence in lieu of oral evidence, wherein he has reiterated the complaint averments i.e. about issuance of cheque by the accused, presentation of cheque, dishonour of cheque for the reason of Account closed. It is further testified by the complainant that, after receipt of memo of the bank, he has issued a legal notice on 30.06.2017 through his advocate to the accused by registered post and the notice sent to the accused was returned as "refused hence returned to sender on 03.07.2017" and "Addressee Left" returned to sender on 06.07.2017" even after issuing of notice 12 C.C.No.21250/2017 J the accused has not made any payment to him. On careful perusal of the documents produced by the complainant i.e., Ex.P.1 to P.17, it is established that, the complainant has complied the procedural requirements as contemplated U/s.138 of the Negotiable Instrument Act.
13. It is also relevant here to mention that, when the case was posted for cross examination of DW.1, the accused and the complainant have filed joint memo on 27.11.2021 stating that, the accused has admitted the issuance of cheque 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 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 voluntarily submitted the said joint memo and it is duly signed by them and their respective counsels. On an enquiry, the complainant and accused 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.
13 C.C.No.21250/2017 J14. Though the accused has denied the transaction in question and also issuance of the cheque in question in favour of the complainant towards discharge of the loan amount in question but in the joint memo filed by the accused has clearly admitted the issuance of cheque in favour of the complainant and also liability to pay the loan amount in question in favour of the complainant. Therefore the complainant has proved that, he has lent loan amount in question to the accused and the accused inturn has issued the cheque in question ie Ex.C.2 towards discharge of the loan amount in question, therefore the accused has committed an offence punishable U/s.138 of N.I.Act.
15. It is also seen from the terms of the joint memo, both the complainant and accused have settled their dispute for sum of Rs.15,00,000/ (Rupees Fifteen Lakhs only) to the complainant towards full and final settlement ie., the accused has paid Rs.1,50,000/ to the complainant on 27.11.2021 and the accused has agreed to pay remaining amount of Rs.13,50,000/ within 5 months ie., on or before 20th April 2022 and the complainant has also agreed to receive the said amount in the above 14 C.C.No.21250/2017 J said manner and both parties requested to pass the judgment as per the terms and conditions of the joint memo.
16. 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 is answered in the Affirmative.
17. Point No.2: In the light of discussions made in the above point and as per the terms 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 : ORDER Acting U/sec.264 of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of Negotiable Instruments Act. The accused is sentenced to pay an amount of Rs.15,00,000/ (Rupees Fifteen Lakhs only) to the complainant and the accused has already paid Rs.1,50,000/ to the 15 C.C.No.21250/2017 J complainant on 27.11.2021 and the accused shall pay remaining balance amount of Rs.13,50,000/ within 5 months ie., on or before 20th April 2022.
The Joint Memo filed by the complainant and the accused shall form part and parcel of this order.
In default the Accused shall under go simple imprisonment for a period of (10) Ten days for the offence punishable U/sec.138 of N.I.Act and also liable to pay the amount as per the Joint memo to the complainant.
The Bail bond and surety bond of the accused stands cancelled.
Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
(Directly dictated to the Stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 29th day of November 2021).
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant: P.W.1 : Sri.Jayaramu T.N. (GPAHolder) 16 C.C.No.21250/2017 J
2. List of documents exhibited on behalf of the Complainant: Ex.C1 General power of attorney Ex.C2 Original Cheque;
Ex.C.2(a) Signature of the Accused;
Ex.C.3 Bank Memo;
Ex.C.4 office copy of the Legal Notice
Ex.C.5 & C.6 Postal receipts
Ex.C.7 & C.8 Returned legal notices
Ex.C.9 & C.10 Postal envelopes
Ex.C.11 & C.12 Postal receipts
Ex.C.13 Postal acknowledgement
Ex.C.14 letter dt: 8.10.2011 issued by the
land owner
Ex.C.15 letter dt: 6.1.2012 issued by the
land owner
Ex.C.16 letter dt: 5.1.2013 issued by the
land owner
Ex.C.17 pass book
3. List of witness/s examined on behalf of the Accused: DW.1 Sri.Shivakumraswamy
4. List of documents exhibited on behalf of the Accused: Nil (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
17 C.C.No.21250/2017 J29.11.2021 Case called, complainant and counsel for complainant absent, accused and counsel for accused absent, Judgment pronounced vide separate order.
ORDER Acting U/sec.264 of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of Negotiable Instruments Act.
The accused is sentenced to pay an amount of Rs.15,00,000/ (Rupees Fifteen Lakhs only) to the complainant and the accused has already paid Rs.1,50,000/ to the complainant on 27.11.2021 and the accused shall pay remaining balance amount of Rs.13,50,000/ within 5 months ie., on or before 20th April 2022.
The Joint Memo filed by the complainant and the accused shall form part and parcel of this order.
In default the Accused shall under go simple imprisonment for a period of (10) Ten days for the offence punishable U/sec.138 of N.I.Act and also liable to pay the amount as per the Joint memo to the complainant.
18 C.C.No.21250/2017 JThe Bail bond and surety bond of the accused stands cancelled.
Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
XVI ACMM, B'lore