Bangalore District Court
D.N.Sivaprasad Setty vs N.Manjula on 14 March, 2023
1 CC.17089/2019
KABC030542412019
Presented on : 29-07-2019
Registered on : 29-07-2019
Decided on : 14-03-2023
Duration : 3 years, 7 months, 16 days
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 14 th day of March 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.17089/2019
Complainant : D.N.Sivaprasad Setty
S/o Late.D.Narayana Setty
Aged about 67 years,
R/at No.104, Elegenex Brindavan,
36th A Cross, 11th Main,
Jayanagar 4th T Block,
Bengaluru -560 041.
(By Sri.T.Manjunath., Adv.,)
- Vs -
2 CC.17089/2019
Accused : N.Manjula
W/o Vinod Kumar
Aged about 29 years
R/at No.801, 28th Main Road,
31st Cross Road, Tilak Nagar,
Bengaluru-560041
(By Sri.Suresh.M Charamagol, Ad v)
Case instituted : 10.07.2019
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted [
Date of order : 14.03.2023
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 complainant and accused were well known to each other. The accused has approached the complainant for hand loan of Rs.10,000/- in the month of February 2019 to meet her personal requirements and promising to repay the same within 3 months. The complainant has paid an amount of Rs.10,000/- to the 3 CC.17089/2019 accused by way of cash. Towards the discharge of loan, the accused had issued a cheque bearing No.000011 dated 05.03.2019 for Rs.10,000/- drawn on HDFC Bank, Bannerghatta Road Branch, Bengaluru in favour of the complainant. The complainant has presented the said cheque for encashment on 20.05.2019 through his banker State Bank of India, Basavanagudi, Bengaluru. But, the said cheque was returned dishonoured with an endorsement as Drawers Signature Differs on 22.05.2019. The complainant got issued a legal notice on 19.06.2019 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 said notices was served upon the accused on 22.06.2019.
But in spite of deemed service of legal notice, the accused neither paid the cheque amount nor replied the notice 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.8787/2019. 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.6.
4 CC.17089/20194. My learned predecessor in office having heard the arguments of the learned counsel for the complainant and on perusal of complaint allegations, 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.17089/2019 and process was issued to the accused vide order dated 26.07.2019.
5. On service of summons, the accused has appeared before the court on 27.01.2023 through her learned counsel and obtained bail vide order dated 27.01.2023 by depositing cash surety of Rs.1,000/- vide Q.No.23271 dated 27.01.2023. The prosecution papers were supplied to accused. 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.
6. 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.6.
5 CC.17089/20197. When the case is set down for cross of PW.1, the complainant and the accused by representing by their respective learned counsels have settled the dispute before the court and the accused have admitted the issuance of the cheque in favour of the complainant and settled the matter amicably for a sum of Rs.15,000/- (Rupees Fifteen Thousand only) as full and final settlement and the accused has agreed to pay the amount of Rs.15,000/- to the complainant on or before 31.03.2023. 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.
8. I have heard the arguments and perused the complaint, evidence, documents and joint memo submitted before the court.
9. 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.15,000/- (Rupees Fifteen Thousand only) as per the joint memo and the terms 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?6 CC.17089/2019
2. What Order?
10. 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
11. 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.
12. 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 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:-
7 CC.17089/20191. 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.
[
13. 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.
14. 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. As per section 118 of the Act, a presumption shall be raised regarding 'consideration' 8 CC.17089/2019 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument.
15. 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.
16. In the present case, the complainant has produced the cheque dt:05.03.2019, bank memo, legal notice, postal receipt, postal acknowledgement and complaint and they are marked at Ex.P.1 to P.6. The complainant has stated about issuance of cheque by the accused, presentation of cheque, dishonour of cheque for the reason of Drawers Signature Differs. It is further stated by the complainant that after receipt of memo from the bank, he has issued a legal notice on 19.06.2019 through his advocate to the accused which has been duly served on accused. But, even after issuing of notice and service of notice, the accused has 9 CC.17089/2019 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.
17. It is relevant here to mention that, the accused and the complainant have settled the dispute and the accused has admitted the issuance of cheque in question in favour of the complainant and also admitted her 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.
18. Though the accused has denied the transaction in question and also issuance of the cheque in question in favour of the complainant 10 CC.17089/2019 towards discharge of the loan amount in question in his 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.
19. The complainant has proved that he has paid an amount of Rs.15,000/- to the accused 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.
20. It is also seen from the terms and conditions of the joint memo, the complainant and accused have settled their dispute for a sum of Rs.15,000/- to the 11 CC.17089/2019 complainant and the accused has agreed to pay the said amount on or before 31.03.2023. 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.
21. 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.
22. 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 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 :-
OR DER Acting U/sec.264 of Cr.P.C. the accused is convicted for the offence 12 CC.17089/2019 punishable U/sec.138 of Negotiable Instruments Act.
The accused is convicted and sentenced to pay a fine of Rs.15,000/- (Rupees Fifteen Thousand only) to the complainant.
The accused shall pay an amount of Rs.15,000/- (Rupees Fifteen Thousand only) to the complainant on or before 31.03.2023 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.
The Bail bond of the accused 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 her, verified, corrected and then pronounced by me in the open Court on this the 14th March 2023).
(SRI.N.M.RAMESHA), XVI ACMM, Bengaluru City.
13 CC.17089/2019ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : D.N.Sivaprasad Setty
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 : Complaint
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.14 CC.17089/2019
14.03.2023 Judgment pronouned in open court, (vide separate order) 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.15,000/- (Rupees Fifteen Thousand only) to the complainant.
The accused shall pay an amount of Rs.15,000/- (Rupees Fifteen Thousand only) to the complainant on or before 31.03.2023 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.
The Bail bond of the accused stands cancelled forthwith.
15 CC.17089/2019Office 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.
XVI ACMM, Bengaluru City