Bangalore District Court
Nagar vs Pooppally Junction on 26 April, 2018
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 26th DAY OF APRIL, 2018
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.61204/2017
SDS Ramcides Crop Science Pvt. Ltd.,
Having its registered Office at No.47 & 49,
VBC Solitaire, 7th Floor, Bazullah Road, Taluk
COMPLAINANT Nagar, Chennai - 600 017 and its Branch
Office at No.71/1, 1st Floor, New Timber
Yard Layout, Mysuru Road, Near Satellite
Bus Stand, Bengaluru - 560 026.
Reptd by its Assistant Manager - Legal
Mr. Jobee Paul
Amala Agro Agencies
Reptd by its Proprietor - Sri. Sura Prakash
ACCUSED Pooppally Junction, Ponga P.O. Kuttanadu,
Alappuzha - 688 512.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is convicted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.61204/2017
JUDGMENT
The complainant company has approached this court through its Assistant Manager - Legal-cum-Power of Attorney holder with the complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 r/w Sec.142 of Negotiable Instruments Act, 1881. (herein after referred as N.I. Act)
2. The case of the complainant is that, the complainant company is a registered company under the Companies Act, 1956 and producing Herbicides, Fungicides, Insecticides and Plant Nutrients used across the varied crops. The accused, being the proprietor of Amla Agro Agencies is the dealer/distributor of the complainant company. The accused being the distributor used to purchase the Pesticides, Fungicides, Herbicides and Insecticides etc., on running account basis and in due in favour of the complainant towards goods supplied. Towards discharge of the due amount, the accused had issued cheque bearing No.418323 dated 23.10.2017 for Rs.8,50,660/- drawn on State Bank of India, Alappuzha.
3. It is further case of the complainant that as per the assurance of the accused, the complainant presented the said cheque for encashment through HDFC Bank Ltd., Richmond Road branch, Bengaluru on 24.10.2017, but the said cheque was dishonoured for the reason "funds insufficient" by memo 3 C.C. No.61204/2017 dated 25.10.2017. Thereafter the complainant requested the accused to pay the cheque amount, but the accused had not opted to comply with the same. Thereafter the complainant got issued legal notice dated 30.10.2017 by RPAD thereby calling upon the accused to repay the cheque amount. The said notice was served on the accused on 3.11.2017. In spite of the service of notice, the accused neither opted to comply with the demand made nor issued any reply and thereby intentionally committed the offence punishable U/s.138 of N.I. Act. Accordingly on these grounds, the complainant has prayed for punishment to the accused and for grant of compensation to meet the ends of justice.
4. After filing of the complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement representative of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons and accordingly Criminal Case was registered against the accused for the offence punishable U/s.138 of N.I. Act and summons was ordered to be issued.
5. In pursuance of the summons issued by this court, the accused has put up his appearance through his counsel and enlarged on bail. Thereafter plea was recorded. The accused has denied the substance of accusation and claimed for trial.
4 C.C. No.61204/20176. In order to prove the case of the complainant, the representative of the complainant is examined as CW.1 and got marked as many as six documents as per Ex.C1 to C6 and closed his evidence. The accused has not opted to file application U/s.145(2) of N.I. Act and as such case was posted for defence evidence, in view of the decision of the Hon'ble Apex court in (2014) 5 SCC 590 - Indian Bank Association and others Vs Union of India and others - [W.P. (civil) No.18/2013]. When the case was posted for defence evidence, the parties have settled the matter between them amicably and filed application U/s.147 of N.I. Act praying for judgment in terms of the settlement. In view of the settlement, the counsel for the accused has not opted to place any evidence on behalf of the accused. The learned counsel for both parties prayed for allowing the application filed U/s.147 of N.I. Act and accordingly prayed for passing of the judgment of conviction in terms of the settlement.
7. Heard the learned counsel for both parties and perused the material on record, the points that would arise for consideration are:-
1) Whether the complainant proves that the accused had issued cheque in question in discharge of the legally recoverable debt and committed the offence punishable under Section 138 of N.I. Act?5 C.C. No.61204/2017
2) Whether the application filed U/s.147 of N.I. Act by the parties could be allowed?
3) What Order?
8. The above points are answered as under;
Point No.1 : In affirmative,
Point No.2 : In affirmative,
Point No.3 : As per the final order,
for the following.......
REASONS
9. Point Nos. 1 and 2: Since these two points are inter linked and to avoid repetition they are taken together for discussion. As already stated in support of the claim of the complainant, the representative of the complainant in his sworn statement reiterated the complaint averments in toto which itself is treated as examination-in-chief in view of the decision of the Hon'ble Apex Court in Indian Bank Association and others Vs Union of India and others - [W.P. (civil) No.18/2013]. In addition to that the complainant has produced notarized copy of the power of attorney, cheque dtd.23.10.2017, bank endorsement dtd.25.10.2017, office copy of the legal notice dtd.30.10.2017, postal receipt for having sent notice to the accused by RPAD and postal acknowledgement for having served the notice on the accused as per Ex.C1 to C6 respectively. The contents of Ex.C1 to C6 are analyzed, they clearly support the version of 6 C.C. No.61204/2017 the complainant. The contents of Ex.C2 & C3 i.e cheque and bank endorsement reveal that the accused had issued cheque dated 23.10.2017 for Rs.8,50,660/- in favour of the complainant and the complainant had presented the same for encashment on 24.10.2017 through HDFC Bank and the same was dishonoured for the reason "funds insufficient" on 25.10.2017 as put up by the complainant. Further, from the contents of Ex.C4 to C6, it is clear that after dishonour of the cheque as found in Ex.C3, the complainant got issued legal notice dtd.30.10.2017 as per Ex.C4 through registered post A.D and the said notice was served on the accused on 03.11.2017 as put by the complainant. The complainant presented the complaint on 30.11.2017 i.e after lapse of 15 days from the date of service of notice on the accused and within 30 days thereafter. Hence on perusal of these aspects, it is clear that prima facie the complainant had presented the cheques in question within its validity and got issued statutory notice within statutory time and filed the present case within the prescribed period. Admittedly, in spite of issuance of notice the accused had not complied with the demand made in the notice. Therefore, on going through these documents their remains no doubt that the complainant had complied with all the technical requirements of Sec.138 of N.I. Act in filing the present complaint. The accused has admitted the cheque in question. The accused has not opted to cross-examine the complainant and not disputed the case 7 C.C. No.61204/2017 of the complainant in this regard. There are no grounds to disbelieve the case of the complainant as to existence of legally recoverable debt and also issuance of cheque by the accused towards discharge of debt in favour of the complainant as put up by the complainant. The statutory presumptions U/s.118 and 139 of the N.I. Act is also in favour of the complainant. Hence, it is clear that the complainant has proved all the necessary ingredients of Sec.138 of N.I. Act and thereby the commission of the offence punishable under the said section as contended.
10. As stated earlier, in this case when the case was posted for defence evidence, the parties have settled the matter between them for Rs.3,20,000/- towards full and final settlement of the cheque amount involved in this case and the accused has agreed to pay the said amount in two installments on 20.07.2018 and on 20.08.2018 at Rs.1,60,000/- each. In view of the settlement, the parties filed joint application U/s.147 of N.I. Act praying for judgment in terms of their settlement. It is needless to say that the offence punishable U/s.138 of N.I. Act is compoundable in nature and the parties are at liberty to settle the matter and thereby compound the offence. Now by filing the application U/s.147 of N.I. Act, the parties are seeking judgment in terms of their settlement. Both parties have clearly admitted the contents of the application filed U/s.147 of N.I. Act before the court and stated that it is out of their free will and consent. It 8 C.C. No.61204/2017 is clear from the contents of the application that the accused has agreed to pay settled amount of Rs.3,20,000/- in two installments on 20.07.2018 and on 20.08.2018 at Rs.1,60,000/- each as full and final settlement. The accused has also agreed to suffer the judgment of conviction and to undergo sentence which the court may impose in case of default in payment as agreed. On going through the contents of the application, this court did not find any grounds to reject the application filed by the parties. There are no reasons to hold that the settlement entered into between the parties is either opposed to the public policy or against to law in any angle. As already stated the offence in question compoundable in nature and since the parties have settled the matter between them, the judgment could be passed on the basis of the said application as sought for by the parties to meet the ends of justice. Therefore considering all these aspects, this court is of the considered view that point Nos.1 & 2 are required to be answered in Affirmative and answered accordingly.
11. Point No.3: For the reasons discussed in connection with Point Nos.1 and 2 this court proceed to pass the following......
9 C.C. No.61204/2017ORDER Acting under Section 255(2) of Cr.PC r/w Sec.147 of N.I. Act, the accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instrument Act. The convicted shall pay a fine of Rs.3,20,000/- for the offence punishable U/s.138 of N.I. Act. In default of payment of fine amount, the convicted shall under go simple imprisonment for a period of six months.
By exercising the power conferred U/s.357(1) of Cr.PC and also considering the settlement arrived between the parties and object of the legislation, the total fine amount of Rs.3,20,000/- is ordered to be paid to the complainant as compensation. The convicted shall pay the said compensation amount in two installments i.e on 20.07.2018 and on 20.08.2018 at Rs.1,60,000/- each.
The bail bond of the accused stands cancelled. The cash security is deposited by the accused is ordered to be continued till expiry of the appeal period.
Supply the free copy of this judgment to the convicted forth with.
(Dictated to the stenographer, typed by him, transcript corrected by me and pronounced in the open court on this the 26th day of April, 2018) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 10 C.C. No.61204/2017 ANNEXURE Witnesses examined for the complainant:
CW.1 : Sri. Jobee Paul
Witnesses examined for the defence:
NIL
Documents marked for the complainant:
Ex.C1 : Notarized copy of Power of Attorney
Ex.C2 : Cheque
Ex.C3 : Bank endorsement
Ex.C4 : Legal Notice
Ex.C5 : Postal receipt,
Ex.C6 : Postal acknowledgement
Documents marked for the defence:
NIL
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU