Bangalore District Court
Smt.Praveena U.Hegde vs Smt.Suma Venkatesh on 24 May, 2023
1 CC.23612/2022
KABC030596742022
Presented on : 23-07-2022
Registered on : 23-07-2022
Decided on : 24-05-2023
Duration : 0 years, 10 months, 1 days
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 24 th day of May 2023
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. : C.C.No.23612/2022
Complainant : Smt.Praveena U.Hegde,
W/o.N.Nagendra,
Aged about 47 years,
Residing at No.126,
Ganesh Mandir Road,
Thyagaraja Nagar 2nd Blcok,
Bengaluru-560 028.
(By Sri.Channabasaiah G.M., Adv.,)
- Vs -
Accused : Smt.Suma Venkatesh,
W/o.Venkatesh,
Aged about 50 years,
Residing at Flat No.34013,
Tower No.4, Block No.03,
Prestige Falcon City,
2 CC.23612/2022
Konanakunte,
Bengaluru-560062.
(By Sri.B.R.Shashibhushan, Ad v)
Case instituted : 20.04.2022
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted [
Date of order : 24.05.2023
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:-
The husband of the complainant and the husband of the accused were the friends. The family of Complainant and the family of accused are known to each other. During the last week of January 2021, the accused and her husband have approached and requested the complainant to pay a sum of Rs.6,00,000/- as hand loan for her business purpose. The complainant has issued a cheque bearing No.00628819 dated 6.02.2021 for a sum of Rs.3 lakhs and the same has been encashed by the accused. The 3 CC.23612/2022 accused has issued a cheque bearing No.000092 dated 02.03.2022 for Rs.3 lakhs drawn Bank of Baroda, Paul Chinnappa ISRO Layout Branch, Bengaluru-61 in favour of the complainant towards repayment of loan.
The complainant has presented the cheque before the bank for encashment. But the cheque was dishonoured for the reason Insufficient Funds on 03.03.2022. The complainant got issued a legal notice on 14.03.2022 to the accused calling upon the accused to make the payment covered by the said cheque within 15 days from the date of receipt of the notice. The notice has been served upon the accused on 15.03.2022. But in spite of service of legal notice, the accused has failed to pay the cheque amount and thereby committed an offence punishable U/s.138 of N.I.Act. Hence, this complaint.
3. After presentation of complaint, it was ordered to be registered as PCR No.7718/2022. 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.7.
4. My learned predecessor in office having heard the arguments of the learned counsel for the complainant and on perusal of complaint allegations, 4 CC.23612/2022 sworn statement of complainant and documents and having satisfied with the materials placed on record, has taken cognizance for the offence punishable U/s.138 of N.I.Act and ordered to register as C.C.No.23612/2022 and process was issued to the accused vide order dated 22.07.2022.
5. On service of summons, the accused has appeared before the court on 21.10.2022 through her learned counsel and obtained bail vide order dated 21.10.2022 by furnishing surety. The prosecution papers were supplied to accused.
6. The plea of accused for the offence punishable U/s.138 of N.I.Act has been recorded and the substance of accusation has been read over and explained to the accused in the language known to her. But on being plea recorded, the accused has pleaded not guilty but claimed to be tried.
7. 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.7. The statement of accused U/s.313 of Cr.P.C already been recorded.
5 CC.23612/20228. When the case is set down for defence evidence, 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.3,00,000/- (Rupees Three Lakhs only) as full and final settlement and the accused has agreed to pay the amount of Rs.3,00,000/- to the complainant in three equal monthly installments at the rate of Rs.1,00,000/-each on or before 28.06.2023, 28.07.2023 and 28.08.2023 respectively. The 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.
9. I have heard the arguments and perused the complaint, evidence, documents and joint memo submitted before the court.
10. Now the points that would arises for my consideration are as follows:-
1. Whether the complainant proves that she and accused have settled the dispute for Rs.3,00,000/- (Rupees Three Lakhs only) as per the joint memo and the terms 6 CC.23612/2022 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?
11. 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
12. 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.
13. 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 7 CC.23612/2022 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
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
[
14. 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.
15. 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 8 CC.23612/2022 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.
16. 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. The 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.
17. In the present case, the complainant has produced cheque dt:02.03.2022, bank memo, legal notice, postal receipt, postal acknowledgement, Bank statement and complaint and they are marked at Ex.P.1 to P.7. The complainant has stated about issuance of cheque by the accused, presentation of cheques, dishonour of cheque for the reason of Funds Insufficient. It is further stated by the complainant that after receipt of memo from the bank, he has issued a legal notice on 14.03.2022 through her advocate to the 9 CC.23612/2022 accused which has been duly served on accused. But, even after issuing 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.
18. It is relevant here to mention that, the accused and the complainant have settled the dispute and the accused have admitted the issuance of cheques in question in favour of the complainant and also admitted their 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 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.
10 CC.23612/202219. 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 rent amount in question in her plea, but in the joint memo, 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.
20. The complainant has proved that the accused is due for Rs.3,00,000/-and the accused in-turn has issued cheque in question towards the discharge of the said amount in question and also proved that the cheque in question has been presented within its validity period and after receipt of the bank endorsement, the complainant got issued legal notice to the accused within 30 days from the date of receipt of bank memo and the said notice sent through RPAD was served on the accused. 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.
11 CC.23612/202221. It is also seen from the terms and conditions of the joint memo, the complainant 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.3,00,000/- (Rupees Three Lakhs only) as full and final settlement and the accused has agreed to pay the amount of Rs.3,00,000/- to the complainant in three equal monthly installments at the rate of Rs.1 lakh each on or before 28.06.2023, 28.07.2023 and 28.08.2023 respectively. 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.
22. 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.
12 CC.23612/202223. 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 are liable to pay amount to the complainant as agreed by them. Hence, in the ends of justice, it is just and proper to pass the following :-
OR DER 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 convicted and sentenced to pay a fine of Rs.3,00,000/- (Rupees Three Lakhs only) to the complainant.
The accused shall pay an amount of Rs.3,00,000/- ( Rupees Three Lakhs only ) to the complainant in three monthly equal installments at the rate of Rs.1 lakh each on or before 28.06.2023, 28.07.2023 and 28.08.2023 respectively without fail.
In the event of the accused failed to pay fine 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.13 CC.23612/2022
The Bail bonds of the accused and his surety shall stands cancelled forthwith.
Office is directed to furnish the free certified copy of this judgment to the Accused forthwith in compliance of Sec.363(1) of Cr.P.C.
(Directly dictated to the Stenographer online, printout taken by him, verified, corrected and then pronounced by me in the open Court on this the 24th May 2023).
(SRI.N.M.RAMESHA), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Smt.Praveena U.Hegde
2. List of documents exhibited on behalf of the Complainant:-
Ex.P.1 : Original Cheque.
Ex.P.1(a) : Signature of the accused
Ex.P.2 : Bank Memo.
Ex.P.3 : Office copy of the Legal Notice
Ex.P.4 : Postal receipt.
Ex.P.5 : Postal Acknowledgement
Ex.P.6 : Bank Statement.
Ex.P.7 : Complaint
Ex.P.7(a) : Signature of Witness.
14 CC.23612/2022
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.