Bangalore District Court
Navi Finserv Ltd., Rept. By Joseph Moses ... vs Vandana Vanderveen on 3 December, 2024
KABC030535412023
IN THE COURT OF THE XXV ADDL. CHIEF JUDICIAL
MAGISTRATE, AT BANGALORE
Dated this the 3rd day of December , 2024
Present:
Present : Smt.Sujata Sidagouda Patil,
B.SC.,LL.B.
XXV Addl. Chief Judicial Magistrate,
Bangalore.
C.C.No.30301/2023
Complainant : Navi Finserv Ltd,
Formerly known as Chaitanya Rural
Intermediation Development Services
Pvt.Ltd, Navi Finserv Ltd., 2nd floor
Vaishnavi Tech Square,Iballur Village
Begur Hobli, Bengaluru
Karnataka 560 102.
Rep by Joseph Moses Parambi
Authorized Signatory.
(By AS - Advocate )
V/s
Accused : Vandana Vanderveen
SS Bhoopsandra,
Bangalore North
Bangalow Stuart
Vanderveen, 44, Nandana, 2nd cross
Bangalore 560 094
Karnataka.
(By ARR- Advocate )
1. Date of Commencement of 24.06.2022
offence
2. Date of report of offence 27.11.2023
3. Name of the Complainant Navi Finserv Ltd.,
4. Date of recording of 27.11.2023
evidence
2
C.C.No.30301/2023
5. Date of closing of 19.10.2024
evidence
6. Offence Complained of 138 N.I.Act.
7. Opinion of the Judge Accused is Acquitted
8. Complainant Represented Sri - AS
by
9. Accused defence by Sri - ARR
JUDGMENT
The complainant filed the complaint under Sec.200 Cr.P.C. against the accused for the offence punishable under Sec.138 Negotiable Instruments Act (For short N.I.Act).
2. The brief facts of the complainant case is as under:
The complainant is a Non Banking Organization carrying on the business of lending financial assistance. The accused availed NACH debit loan facility from the complainant agreeing to repay the same with interest and applicable charges and executed loan Agreement No.011360005 and towards repayment of said liability the accused executed E-NACH Mandate in favour of the complainant for a sum of Rs.21,465/- drawn on ICICI bank. The complainant presented said NACH for realisation through its banker i.e HDFC Bank, Koramangala, Bengaluru and the same returned dishonored for the reason "Balance Insufficient". On receipt of said intimation, the complainant got issued legal notice dt.26.10.2023 calling upon the accused to pay the outstanding amount. Despite of service of notice, the accused failed to pay the outstanding amount to the complainant. Therefore, the 3 C.C.No.30301/2023 complainant was constrained to file the complaint against the accused. Hence, this complaint.
3. After filing of the complaint, cognizance taken and recorded the sworn statement of the complainant. The complainant has complied all the statutory requirements under Sec.138 of N.I.Act. Thereafter, the case is registered against the accused and summons issued. The accused appeared with the Advocate and released on bail. Copy of the complaint furnished to the accused. Plea recorded and read out to the accused. The accused pleaded not guilty and claimed to be tried.
4. In support of the complainant's case, the Authorized Representative of the complainant company got examined as PW1 got marked Ex.P.1 to Ex.P7. After closure of the evidence of the complainant, 313 Cr.P.C statement of the accused has been recorded. The accused denied the incriminating evidence placed by the complainant. Inspite of grant of opportunities, the accused has not lead defence evidence. Hence, defense evidence taken as Nil.
[ Heard arguments and perused the material on record.
5. On the basis of the contents of the complaint the following points arise for my consideration. :
1. Whether the complainant proves beyond reasonable doubt that the accused issued E-NACH Mandate in favour of the complainant for a sum of Rs.21,465/- drawn on ICICI bank towards discharge of legal liability ?4
C.C.No.30301/2023
2. Whether the complainant proves beyond reasonable doubt that the accused has committed the offence punishable under Sec.138 of N.I.Act?
3. What order ?
6. My findings to the above points are as follows:
Point No.1&2 In the Affirmative.
Point.No.3 : As per final order for the following:
REASONS
7. Point Nos.1 & 2: Both these points are interconnected with each other. In order to avoid repetition of facts, both the points have been taken up together for consideration.
It is the case of the complainant that the complainant is a Non Banking Organization carrying on the business of lending financial assistance. The accused availed debit loan facility from the complainant agreeing to repay the same with interest and applicable charges and executed loan Agreement No.011360005 and towards repayment of said liability the accused executed E- NACH Mandate in favour of the complainant for a sum of Rs.21,465/- drawn on ICICI bank. The complainant presented said NACH for realisation through its banker i.e HDFC Bank, Koramangala, Bengaluru and the same returned dishonored for the reason "Balance Insufficient". On receipt of said intimation, the complainant got issued legal notice dt.26.10.2023 calling upon the accused to pay the outstanding amount. Despite of service of notice, the accused failed to pay the outstanding amount to the 5 C.C.No.30301/2023 complainant. Therefore, the complainant was constrained to file the complaint against the accused.
8. In order to create legal presumption as per Sec.139 of N.I. Act, the authorized representative of the complainant company got examined as PW1 by narrating entire complaint averments and got marked the documents as Ex.P.1 to Ex.P7. Ex.P1 is the web copy of the Incorporation Certificate. Ex.P.2 is the Authorization Letter. Ex.P.3 is the NACH, Ex.P4 is the endorsement. Ex.P.5 is the copy of the legal notice. Ex.P.6 is the postal receipt. Ex.P.7 is the web copy of the postal track consignment.
9. During cross examination it is stated that the accused availed loan of Rs.1,20,000/- which is to be repaid in 36 agreed installments. Out of it he made payment of 4 EMIs. Therefore defense counsel specifically suggested that the accused made payment of 11 EMIs but the witness submits that he has to verify the account statement. Apart it there is no material suggestion put by the counsel nor taken material admission in order to erase the allegation made against the accused. Despite the accused has not fully cross examined PW 1 nor lead defense evidence. But at the time of concluding cross of PW 1 , accused was ready to make payment of the cheque amount. Hence, the defense counsel has not cross examined PW 1 further.
10. After closing the complainant's side evidence the Court has recorded the accused statement. The accused denied 6 C.C.No.30301/2023 incriminating evidence placed by the complainant and inspite of grant of sufficient opportunities, not chose to lead defence evidence.
11. The NACH issued by the accused got bounced, and the complainant company complied with the necessary ingredients of Sec.138 of N.I. Act. Accused failed to issue reply notice to the legal notice issued by the complainant company Hence, it is legally presumed that the NACH was issued by the accused towards discharge of legally enforceable debt. It is observed that the NACH is issued for the entire loan amount of Rs.1,20,000/- but accused made part payment and for balance amount of Rs.21,465/- , the complainant has issued the legal notice and based on its contents, filed the complaint with prayer of repayment of balance amount of Rs.21,465/.
12. On careful scrutiny of the entire materials on record, it reveals that the counsel for the accused deposited part payment Rs.10,000/- on 14.11.2024 out of the entire amount of Rs.21,465/- and said amount has been deposited in the court. Subsequently, on 27.11.2024 , the counsel for the accused deposited the balance amount of Rs.11,465/- through DD No.489135 drawn on Karnataka Bank , CJM Court Branch, Bangalore . However , the counsel for the complainant was not ready to accept the payment as he had no instruction to receive the payment by hand. Hence, said DD has been taken by the accused in the name of the court and the office is directed to receive the DD until further process. 7
C.C.No.30301/2023 While depositing the amount, the complainant 's counsel submits that he has no other claim apart the cheque amount. Hence, after receiving the cheque amount, the purpose of filing the case is served. Therefore, the complainant has proved point No.1 beyond all reasonable doubt. Hence, Point No.1 & 2 are answered in the Affirmative.
13 . Point No.3 : In view of the discussion made supra, the court is of the opinion that the complainant has proved that the accused committed an offence punishable u/s.138 Negotiable Instrument Act. Hence, accused admitted guilt. Hence, admitted facts need not be proved. As per the principles discussed in reported decision 2005 (10) SCC 632 (K.J.B.L.Rama Reddy V/s.Annapurna Seeds & Anr) , the accused though pleads not guilty, but at the time of conclusion of trial, approached the court and deposited the entire amount. Hence, he is entitled for acquittal. Hence, in view of this I proceed to pass the following:
ORDER Exercising the powers conferred upon this court u/s.255(1) Cr.P.C., the accused is hereby Acquitted for the offence punishable under Sec.138 Negotiable Instrument Act. The amount deposited in the court account shall be released in favour of the complainant's representative on his approach with proper identity proof. 8
C.C.No.30301/2023 The bail bond of the accused and that of the surety if any stand cancelled.
(Dictated to the Stenographer directly on the computer, typed by her , corrected and signed then pronounced by me in the open court on this the 3rd day of December, 2024).
(SUJATA SIDAGOUDA PATIL) XXV A.C.J.M., BANGALORE.
ANNEXURE LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
PW 1 : Joseph Moses Parambi LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P1 : Web copies of Incorporation Certificate Ex.P2 : Copy of the Authorization Letter Ex.P3 : NACH Ex.P4 : Bank Endorsement Ex.P5 : Office copy of legal notice Ex.P6 : Postal receipt Ex.P7 : Web copy of postal track consignment certificate LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
Nil LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
Nil (SUJATA SIDAGOUDA PATIL) XXV A.C.J.M., BANGALORE.