Bangalore District Court
Mr.Dhakshinamurthy S vs M/S.Silvergem Hvac on 2 November, 2019
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
-: PRESENT :-
PADMA PRASAD, BA (Law), LLB.
XXXIII ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 2ND DAY OF NOVEMBER, 2019.
C.C.No.59939/2018
COMPLAINANT : Mr.Dhakshinamurthy S
Aged about 40 yrs
S/o Late Sundareshan
Proprietor,
MD Enterprises, No.30, Netaji
Cross Road
Post office Main Road,
Ramamurthy Nagar, Bengaluru,
Karnataka - 560016
Phone : 9036467986
.Vs.
ACCUSED : 1. M/s.SILVERGEM HVAC
PROJECTS Pvt. Ltd.
No.2B, 2nd Floor, No.5/1, Rich
Homes, Richmond Road,
Bangalore - 560024
Presently at:
No.5, First Floor, 10th Cross,
Jayamahal Extension Main
Road
Bangalore - 560046
Represented by its Directors
2 C.C.No.59939/2018
2. Mr.Syed Zahid Ali
Aged about 65 years
Director
M/s. Silvergem HVAC Projects
Pvt. Ltd.
'Shan-E-Noor', #20, 1st Cross,
Millers Road
Bangalore North, Bengaluru
Karnataka - 560046
3. Mr.Gulzar Khan Imran Khan
Aged about 38 years
Director
M/s. Silvergem HVAC Projects
Pvt. Ltd.
No.101, 1st Floor, Palace view
Apartment, Jayamahal
Extension main Road
Bangalore - 560046
Presently at:
No.5, First Floor, 10th Cross
Jayamahal Extension Main
Road
Bangalore - 560046
***
JUDGMENT
The complainant filed this complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
3 C.C.No.59939/20182. The complaint case in nutshell is that the he is the sub- contractor and specialist in installation and servicing of Air Conditioners. The complainant is the main contractor and the accused has carried out the work entrusted by the complainant to their satisfaction. Accordingly, the complainant has raised the final invoice for Rs.2,89,685/- on 25.01.2016. The complainant towards the part payment of said amount issued a cheque bearing No.000735 dtd:03.09.2018 for Rs.1,00,000/- drawn on HDFC Bank, Richmond Road. When the complainant presented the said cheque for encashment that has been returned without encashment with bank memo dtd:05.09.2018 stating "Funds Insufficient". Thereafter, the complainant issued a legal notice to the accused on 22.09.2018. The said notice has been served on to the accused on 27.09.2018. The accused failed to pay the cheque amount inspite of service of notice. Hence, filed this complaint.
3. After filing the complaint, sworn statement of the complainant has been recorded and on perusing the materials on record i.e., cheque, bank endorsement, legal notice etc., the court has been taken the cognizance of offence and issued summons to the accused.
4. In response to the summons, the accused appeared through his counsel and he was on court bail. Plea has been 4 C.C.No.59939/2018 recorded; accused pleaded not guilty and claimed to be tried.
5. When the case is posted for cross of P.W.1, the parties submitted a joint memo reporting the settlement and also prayed to pass judgment as per the terms of joint memo dtd:22.10.2019.
6. On the basis of above, the point for consideration is that;
1. "Whether the complainant has proved that the accused has committed the offence punishable under Sec.138 of Negotiable Instruments Act?"
2. Whether the joint memo filed by the parties could be allowed?
3. What order?
7. Heard the arguments and perused the materials on record. On that basis my finding on the above are as under;
Point No.1 : In the Affirmative.
Point No.2 : In the Affirmative.
Point No.3 : As per final order for the
following;
REASONS
8. Point Nos.1 & 2: The complaint case in nutshell is that the he is the sub-contractor and specialist in installation 5 C.C.No.59939/2018 and servicing of Air Conditioners. The complainant is the main contractor and the accused has carried out the work entrusted by the complainant to their satisfaction. Accordingly, the complainant has raised the final invoice for Rs.2,89,685/- on 25.01.2016. The complainant towards the part payment of said amount issued a cheque bearing No.000735 dtd:03.09.2018 for Rs.1,00,000/- drawn on HDFC Bank, Richmond Road. When the complainant presented the said cheque for encashment that has been returned without encashment with bank memo dtd:05.09.2018 stating "Funds Insufficient". Thereafter, the complainant issued a legal notice to the accused on 22.09.2018. The said notice has been served on to the accused on 27.09.2018. The accused failed to pay the cheque amount inspite of service of notice. Hence, filed this complaint.
9. The complainant has filed his sworn statement and adopted the same as his evidence and also produced original cheque, Bank Return Memo, legal notice, postal receipt, postal acknowledgment, returned postal covers etc at Ex.P.1 to 8. The accused has not disputed the issuance of cheque as well as liability claimed in the complaint. Hence, it is clear that the accused has admitted the issuance of cheque and thereby admitted that the cheque has been issued 6 C.C.No.59939/2018 towards the discharge of legally enforceable debt. In view of the principle laid down by the Hon'ble Supreme Court in a decision reported in; (2014) 5 SCC 590. (Indian Bank Association and others .Vs. Union of India and others). In this case the complainant has produced original documents. In this case the accused not disputed the documents relied by the complainant. All these documents sufficiently discloses that the accused is liable to pay the cheque amount. Both the parties submitted that the matter has been settled and filed joint memo dtd:22.10.2019.
10. The parties filed joint memo dtd:22.10.2019 reporting the settlement praying for the judgment. In the application, the parties settled their dispute for Rs.1,00,000/- as full and final settlement. The accused agreed to pay the said amount in monthly installments of Rs.40,000/- on 05.11.2019 and Rs.30,000/- each on 06.12.2019 & 05.01.2020 as stated in the joint memo dtd:22.10.2019. The parties are praying to judgments in terms of the settlement as per application. Both the parties have admitted the contents of application and also admitted the issuance of cheques by the accused in favour of the complainant as stated in the application. The offence under Sec.138 of N.I.Act is compoundable as per Sec.147 of N.I.Act. Accordingly the parties compounded the offence as per the terms of application and prayed to pass the judgment accordingly. There is no legal impediment to permit the 7 C.C.No.59939/2018 parties to compound the offence and the settlement of the dispute by the parties is not opposed to the public policy or against law. The only prayer made by the accused is granting of time for payment of money due to the complainant. Even Sec.424 of Cr.P.C. also authorizes the court to grant time for payment of fine amount. Under such circumstances no prejudice will be caused to the complainant if time is granted for payment of admitted amount. Per-contra it will help the parties. Considering all the aforesaid facts this court is of the humble opinion that the complainant has proved that the accused has committed the offence punishable under Sec.138 of N.I.Act and also made out a case to permit them to settle the dispute as per joint memo dtd:22.10.2019. Accordingly the above points are answered in the "Affirmative". However, as the parties settled their dispute in terms of joint memo, the accused is liable to be acquitted but in case there is a default by the accused to make the payment of fine amount, the complainant is at liberty to proceed against him in accordance with law to recover the agreed amount stated in the joint memo dtd:22.10.2019..
11. Point No.3: In view of my finding on above point Nos.1 and 2, I proceed to pass the following;
ORDER 8 C.C.No.59939/2018 Acting under Section 255(1) of Cr.P.C., r/w.Sec.147 of N.I.Act, the accused is hereby acquitted for the offence punishable under Sec.138 of N.I.Act as they have settled their dispute for a total sum of Rs.1,00,000/- as full and final settlement. The accused shall pay the said amount in monthly installments of Rs.40,000/- on 05.11.2019 and Rs.30,000/- each on 06.12.2019 & 05.01.2020 as stated in the joint memo dtd:22.10.2019 The failure of the accused to pay the amount as agreed in the application, the complainant is at liberty to recover the aforesaid amount due to him under Sec.421 of Cr.P.C.
Bail Bonds of the accused shall continue till the payment of amount as stated in the joint memo.
(Dictated to the Stenographer, transcript thereof is corrected and then pronounced by me in the open court on this the 2nd day of November, 2019) (PADMA PRASAD), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 - Sri.Dhakshinamurthy S - Proprietor 9 C.C.No.59939/2018
1. Documents marked on behalf of complainant:
Ex.P.1 : Original cheque Ex.P.1(a) : Signature of the accused & Ex.P.1(b) Ex.P.2 : Bank Return Memo Ex.P.3 : O/c of the legal notice Ex.P.4 : Three postal receipts Ex.P.5 : Postal Acknowledgment Ex.P.6 & : Returned postal cover Ex.P.7 Ex.P.6(a) : Returned postal notice & Ex.P.7(a) Ex.P.8 : Work order
2. Witnesses examined on behalf of Accused:
Nil
3. Documents marked on behalf of Accused:
Nil (PADMA PRASAD) XXXIII ACMM, BENGALURU.