Bangalore District Court
Central Bank Of India vs Sharavana M on 4 October, 2024
KABC020155422022
IN THE COURT OF THE XXII ADDL. JUDGE, COURT OF
SMALL CAUSES AND ADDL. CHIEF JUDICIAL MAGISTRATE,
BENGALURU CITY
(SCCH-24)
Presided Over by Smt. Roopashri, B.Com., LL.B.,
XXII ADDL., SCJ & ACJM,
MEMBER - MACT,
BENGALURU.
Dated: On this day of 4th day of October, 2024
CC NO.7344/2022
1. Sl.No. of the Case : C.C.No.7344 of 2022.
2. The date of : 21-05-2022
commission of the
offence
3. Name of the : M/s Central Bank of India,
Complainant A Body Corporate constituted
under the Banking Companies
(Acquisition and Transfer of
Undertakings) Act, 1980,
Carrying on the business through
its various branches with its Head
office at Mumbai and having one
of its branches at Rajajinagar,
No.6,7,8
Sudha Commercial Complex,
4th N Block, Dr.Rajkumar Road,
Rajajinagar, Bengaluru,
Represented by its Senior Manager
Mrs. Madhu,
SCCH-24 2 C.C.7344/2022
D/o Shambunath Pandey
Aged about 33 years.
(By Sri.P.Udayashankar Rai,
Advocate)
4. Name of the Sri.Sharavana M
Accused S/o Sri.Mahendra Mani P
Aged about 41 years,
R/at No.513, 44th cross,
4th Block, Rajajinagar,
Bengaluru -560 070.
(By Sri.Vijaya Y Advocates)
5. The offence complained : Under Section 138 of the
of or proves Negotiable Instrument Act.
6. Plea of the accused and : Pleaded not guilty.
his examination
7. Final Order : Accused is not found guilty
8. Date of such order for : 04-10-2024
the following
JUDGMENT
This complaint is filed under Sec. 200 of Cr. P. C. for the offence punishable under Section 138 of the Negotiable Instruments Act.
2. It is the case of the complainant that: The complainant has filed COM OS No.6422/2019 against the accused before the Hon'ble LXXXVI Addl.City Civil and Sessions Judge (Commercial Court) CCH-87 for recovery SCCH-24 3 C.C.7344/2022 of sum of Rs.12,71,047/-. The said suit was ended in compromise as per the compromise petition filed by the parties.
3. In terms of the compromise decree, the complainant has issued one time settlement offer of Rs.4,00,000/- to be repaid by the defendant within 31-03-2022. The accused has paid an amount of Rs.40, 000/- as advance payment on 06-12-2021 and the remaining amount of Rs.3,60,000/- is agreed to be paid by the defendant/ accused within 31-03-2022. The accused has handed over 4 cheques for the balance payment of Rs.3,60,000/- i.e., cheque bearing No.816924 for a sum of Rs.90,000/- dated 31-12-2021, cheque bearing No.816925 for a sum of Rs.90,000/- dated 31-01-2022, cheque bearing No.816926 for a sum of Rs.90,000/- dated 28-02-2022 and cheque bearing No.816924 for sum of Rs.90,000/- dated 23-03-2022 drawn on Canara Bank in favour of complainant. Out of the four cheques when the complainant presented the cheque bearing No.816925 dated 31-01-2022 for encashment, same stands dishonored for the reasons "Funds Insufficient". The accused has failed to comply the terms of the judgment and decree in COM.O.S No.6422/2019 by not maintaining sufficient amount in his account. Thereafter, on 14-03- 2022 the complainant got issued legal notice to the SCCH-24 4 C.C.7344/2022 accused through RPAD. In spite of service of notice, the accused neither has sent reply nor has paid the amount. Accordingly, the accused has committed an offence punishable under Sec.138 of N.I Act.
4. After recording the sworn statement of the complainant and also verifying the documents, cognizance was taken against the accused for the offence punishable under Sec. 138 of N.I. Act. The accused on receiving the summons appeared before this Court through his counsel and he was enlarged on bail and his plea was recorded. The accused pleaded not guilty and claimed to be tried. Hence, the case was posted for evidence of the complainant.
5. The Complainant Bank examined its Senior Manager as PW.1 and got marked documents as Exs.P1 to P11. Then, the case was posted for recording the statement of accused under Sec.313 Cr.P.C. In the statement U/s 313 Cr.P.C., the accused has denied all the incriminating evidence appearing against him and claimed to be tried. The accused has examined himself as DW.1 and got marked 4 cash challens as Ex.D1. Hence, the case was posted for arguments.
6. Heard the arguments of both sides and perused the records.
SCCH-24 5 C.C.7344/20227. The following points arise for my consideration:
1. Whether the complainant proves that accused has committed an offence punishable under Sec.138 of N.I. Act?
2. What order?
8. My findings on the above points are as under
Point No.1: In the Negative. Point No.2: As per final order for the following:
-: R E A S O N S :-
9. POINT NO.1:- This is the private complaint filed under Section 200 of Cr.P.C. for the offence punishable under Section 138 of N.I. Act.
10. It is the case of the complainant that, the cheque issued by the accused for payment of second installment of compromised decree amount of Rs.90,000/- dated 31-01-2022 is dishonored for the reason Funds Insufficient.
11. In order to substantiate the contention, the complainant got examined its representative as Pw1 and got marked in all 11 documents as ExP1 to Ex.P11. If the documents produced by the complainant are perused, ExP1 is the cheque which bears the signature of accused. The accused nowhere has disputed the cheque which SCCH-24 6 C.C.7344/2022 relates to his account so also his signature in the Ex.P1. It is deposed by Pw1 that cheque in question was issued for the discharge of liability. The cheque in question was presented by the complainant through his banker which was returned with memo as per ExP2 stating 'FUNDS INSUFFICIENT'. Hence, he got issued legal notice to the accused through RPAD which is produced at Ex.P.3. A postal receipt is marked at Ex.P.4. The postal acknowledgment is marked at Ex.P.5. The order sheet in OS No.6422/2019 is marked at Ex.P6. The decree is marked at Ex.P7. The compromise petition in OS No.6422/2019 is marked at Ex.P8. The statement of accounts related to loan account of accused is marked as Ex.P.9. The statement of CD account of the accused is marked as Ex.P.10. The certificate of under Sec.65 B of Indian Evidence Act is marked as Ex.P.11.
12. When accused has not disputed that Ex.P1 relates to his account so also his signature in the Ex.P1, the rebuttal presumption can be drawn u/Sec.139 and 118 of NI Act that the cheque in question was issued for discharge of legally recoverable debt. The said presumption is a rebuttal presumption. It is for the accused to rebut the same with cogent materials.
SCCH-24 7 C.C.7344/202213. The accused while admitting the proceeding in COM.OS No.6422/2019 and 4 cheques issued by him for the amount and dates mentioned in the complaint has submitted that all the cheques issued by him were honoured on its presentation except the disputed cheque. It is further submitted that though he could not arrange for honour the disputed cheque at the time of its presentation but later on he paid entire amount and to that effect complainant has issued receipt, hence he is not liable to pay the cheque amount.
14. In order to probablise the defense, the accused got examined himself as Dw1 and got marked document at Ex.D1. Ex.D1 is the cash challen for having paid in all sum of Rs.90,000/- towards loan amount.
15. If the materials placed on record is perused, the admitted fact which emerges is that, the complainant as plaintiff had filed suit in COM.OS No.6422/2019 against the accused and two others before the Hon'ble LXXXVI Addl.City Civil and Sessions Judge (Commercial Court) CCH-87 for recovery of sum of Rs.12,71,047/-. During the pendency of the said suit, the parties have amicably settled the matter and to that effect filed compromise petition as per Ex.P8. As per the terms of compromise, the suit claim was settled for Rs.4,00,000/- and plaintiff has SCCH-24 8 C.C.7344/2022 given one time settlement offer of Rs.4,00,000/- to be repaid by the defendant within 31-03-2022. The defendants have paid an amount of Rs.40,000/- as advance payment on 06-12-2021 and remaining amount of Rs.3,60,000/- was agreed to be paid by the defendants within 31-03-2022. Accordingly for the amount of Rs.3,60,000/- the accused admittedly has issued cheque bearing No.816924 for a sum of Rs.90,000/- drawn on Canara Bank in favour of the plaintiff dated 31-12-2021, cheque bearing No.816925 for a sum of Rs.90,000/- draw on Canara Bank in favour of the plaintiff dated 31-01- 2022, cheque bearing No.816926 for a sum of Rs.90,000/- drawn on Canara Bank in favour of plaintiff dated 28-02-2022 and cheque bearing No.816927 for a sum of Rs.90,000/- drawn on Canara Bank in favour of the plaintiff dated 23-03-2022. Among the 4 cheques, cheque no.2 is the disputed cheque in the present case.
16. As Ex.P8 is the compromise petition filed by the parties before the court and on the basis of the said compromise petition, the compromise decree was passed; the court can very well rely upon the terms and condition enumerated in the Ex.P8. As per para no.6 of the Ex.P8 it is agreed that if the defendants failed to pay the entire balance amount within 06-01-2022 they shall be liable to pay interest on the reducing the balance basis effective SCCH-24 9 C.C.7344/2022 from the date of sanction of one time settlement i.e., dated 06-12-2021. It is further agreed that if defendants failed to pay the entire amount as per the one time settlement within the stipulated time the settlement shall be deemed to be considered as not materialized and plaintiff is at liberty to recover the entire suit claim in OS No.6422/2019 by filing necessary execution petition on appropriating the payments made by the defendants to the plaintiff in terms of the OTS offer.
17. It is admitted by accused that Ex.P1 presented by the complainant was not honoured for insufficient fund. But according to the accused he has paid entire amount in the subsequent days. To that effect he has produced receipts as per Ex.D1 i.e., four receipts. Even the statement of loan account of the accused discloses the said fact of payment of Rs.48,000/- on 03-03-2022, Rs.10,000/- on 27-06-2023, Rs.20,000/- on 26-07-2023 and Rs.12,000/- on 26-07-2023.
18. Though the accused has stated that the rest of the three cheques referred in the complaint are honoured but it is submitted by the learned counsel for complainant that all the four cheques for Rs..90,000/- each issued by the accused is dishonoured and that apart from the present complaint, with respect to the rest of the SCCH-24 10 C.C.7344/2022 dishonored cheques, they have filed separate complaint u/Sec. 138 of NI Act and same is pending for consideration.
19. If the documents placed on record are perused, the Loan Account Number of the accused is 2990323473. Under the said loan account the accused was due of Rs.12,71,047/- and for the recovery of the said loan amount suit in OS No.6422/2019 was filed. But in terms of the compromise petition the accused was due of Rs.3,60,000/- . Hence, sum of Rs.90, 000/- paid by the accused on different dates i.e., on 03-03-2022 for Rs.48,000/-, Rs.10,000/- on 10-06-2023, Rs.20,000/- on 26-07-2023 and Rs.12,000/- on 26-07-2023 has to be adjusted towards the loan amount due by the accused.
20. It is vehemently argued by the learned counsel for complainant that as accused has failed to honour the commitments as per the terms of the compromise petition, he is not bound to appropriate the subsequent amounts as reflected in Ex.P9/Ex.D1 towards the cheque in question and that as accused has failed to comply the terms and condition of the compromise petition, liberty is given to the complainant recovery the entire suit amount and that all the four cheques given in terms of the compromise petition are dishonoured and complaints are SCCH-24 11 C.C.7344/2022 pending before this court in CC No.13952/2022, CC No.13951/2022 and PCR (FR) 1706/2022.
21. In the light of the line of argument canvassed by the learned counsel for complainant, if the terms and condition enumerated in para no.7 of the compromise petition at Ex.P8 is once again refreshed, wherein it is provided that if the accused failed to pay the entire balance amount of Rs.3,60,000/- as per one time settlement within 06-01-2022 then the settlement shall be deemed to be considered as not materialized and plaintiff is at liberty to recover the entire suit claim in OS No.6422/2019 by filing Execution Petition on appropriating the payments made by the defendants to the plaintiff in terms of the OTS offer.
22. Admittedly, the disputed cheque is dated 31-01- 2022. The cheque was dishonoured on 17-02-2022. So far as condition enumerated in para no.6 of the compromise petition is concerned, it is true that the accused has not complied the terms and condition of the compromise petition by not repaying one time settlement offer of Rs.3,60,000/- on or before 06-01-2022. But for the violation of the said terms and condition, liberty is given to the complainant / plaintiff to file execution petition and to get the compromise decree executed for entire suit SCCH-24 12 C.C.7344/2022 claim of Rs.12,71,047/- and liberty is also given to the plaintiff to adjust whatever the amount paid by the accused / defendants subsequent to the compromise towards the balance loan amount of Rs.12,71,047/-. Hence, when admittedly during the pendency of the proceedings the accused has paid sum of Rs.90,000/- towards loan amount on different dates by way of cash and the said amount is acknowledged by the complainant and issued receipt as per Ex.D1 and when it is nowhere the case of the complainant that the said sum of Rs.90,000/- paid by the accused under Ex.D1 is adjusted towards any of the three cheque amount referred above , under such circumstances the amount of Rs.90,000/- paid by the accused under Ex.D1 can be adjusted for the disputed cheque amount and for non compliance of terms and condition of compromise petition, as stated in Ex.P8 option is left with the complainant/plaintiff to file execution petition for the entire suit claim in OS No.6422/2019 by deducting sum of Rs.90,000/- paid under Ex.D1. Hence, it can be said that though the accused has admitted the cheque as per Ex.P1 issued by him for discharge of Rs.90,000/- but as accused has paid the entire sum of Rs.90,000/- subsequent to the filing the complaint, it can be said that accused has rebutted the presumption. Hence, accused is not liable to pay the cheque amount in dispute.
SCCH-24 13 C.C.7344/202223. Though the accused has stated that legal notice is not served to him but has admitted the signature of his wife in the postal acknowledgment. Hence it can be presumed that legal notice is duly served to the accused.
24. The learned counsel for accused has filed detailed written argument wherein at para no.11 he stated that "though he has filed application u/Sec. 311 Cr.PC to recall the evidence of PW.1 and give opportunity to cross examine the PW.1 but he was not provided with fair and enough opportunity to cross examine the PW.1" .
25. In para no.24 of the written argument it is further stated by the learned accused that " the application filed by accused to recall the PW.1 for cross examination was rejected and that the court should have to give proper opportunity to the accused to cross examining the PW.1 but same was denied by the court and that in that regard the accused has preferred criminal revision petition before the Hon'ble High Court and that in spite of bringing the said fact to the notice of the court, the court for the best reason known to it acted detrimental to the interest of the accused, hence, all the efforts of the accused has been defeated due to the negligence of previous counsel on record and due to the failure of the court to enable the SCCH-24 14 C.C.7344/2022 accused to obtain certified copies and not providing fair opportunity to the accused.
26. In para no.25 the learned counsel for accused further stated that the accused had made best effort to settle the matter before Lok Adalath but said attempt was defeated by the act of complainant who remained absent before the Lok Adalath.
27. In the light of the serious allegations made by the learned counsel for accused against the court in their written argument dated 02-09-24, if the proceedings of the present case as borne out in order sheet and in the system of the court is perused, whatever the allegation made by the counsel for accused is for from truth and the said allegation made by the accused has no leg to stand and same are without any basis. If the order sheet is perused, the accused was appeared and enlarged on bail on 16-11-2022. On the date of appearance itself the plea and 311 statement of the accused was recorded and case was posted for cross examination of PW.1 on 07-12-2022. Though sufficient opportunity was given to the accused to subject the PW.1 for cross examination, since the accused did not avail the opportunity the predecessor in office of the court vide order dated 25-05-2023 had taken the SCCH-24 15 C.C.7344/2022 cross examination of PW.1 as nil and posted the case for argument on 02-06-2023.
28. On 02-06-2023 the counsel for accused filed application u/Sec. 311 Cr.PC to recall the evidence of PW.1 and permit them to cross examine the PW.1. The said application was allowed vide order dated 05-06-2023 by imposing cost of Rs.500/- and posted the case for cross examination of PW.1 finally on 22-06-2023.
29. On 22-06-2023 at the submission of defence counsel case was referred to Lok Adalath dated 08-07- 2023.
30. On 08-07-2023 when case was called before Lok Adalath respective parties and their counsels remained absent. Hence, case was called before regular court on 13- 07-2023. From 13-07-2023 till 21-08-2023 case was adjourned from time to time for cross examination of Pw.1. On 21-08-2023 once again case was referred to Lak Adalath dated 09-09-2023. On the said also none of the parties were present before the Lok Adalath, hence case was called before regular court. Thereafter, since accused was remained absent unrepresented warrant was issued against him and then on the application of the accused warrant was recalled on 27-10-2023 and posted the case SCCH-24 16 C.C.7344/2022 again for the cross examination of PW.1 cross on 27-11- 2023.
31. On 27-11-2023 PW.1 was present and he was partly cross examined and further cross of PW.1 was deferred at the instance of accused. On 19-03-2024 the PW.1 was fully cross examined; hence case was posted for defence evidence. After taking two adjournments, on 05- 06-2024, the accused has led his evidence as DW.1 and marked one document as Ex.D1. He was fully cross examined on 03-07-2024. After conclusion of trial the case was posted for argument. Accordingly the respective parties have addressed their oral argument as well as written argument. Thereafter the case was posted for judgment.
32. From the reproduction of the order sheet maintained in the present case it can be said that this court has given fullest opportunity to the accused to put forth his defence and none of the applications filed by the accused was rejected so as to necessitate the accused to prefer criminal revision petition before the Hon'ble Appellate Court. Further on both the occasion when case was referred to Lok Adalath the accused and his counsel were remained absent. But in the written argument the learned counsel for accused has made false allegation SCCH-24 17 C.C.7344/2022 against the court as well as against the complainant. Hence, such conduct of the counsel for accused is condemnable and such practice of making false allegation against the court is to be deprecated.
33. Having regard to the evidence on record this court is of the considered view that accused has probablised his defense and there by rebutted presumption . Therefore, the question of drawing presumption u/Sec.139 of N.I Act does not arise.
34. So, it has to be necessarily held that, the complainant has failed to prove the alleged guilt against the accused and accused has not committed the offence under Sec.138 of N.I. Act. Consequently, point No.1 is answered in the negative.
35. POINT No.2 :- In the light of the reasons on the point No.1 and 2, I proceed to pass the following;
ORDER Acting under Sec. 255 (1) of Cr.PC, the accused is not found guilty of the o/p/u/s 138 read with section 142 of NI Act.
SCCH-24 18 C.C.7344/2022
The bail and surety bond of the
accused and surety shall stand
cancelled.
(Dictated to the stenographer directly on computer, corrected and then pronounced by me in open court, on this the 4th day of October 2024.) (ROOPASHRI) XXII Addl.SCJ & ACJM Bengaluru.
:ANNEXTURE:
LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT P.W.1 : Mrs. Madhu LIST OF DOCUMENTS MARKED ON BEHALF COMPLAINANT:
Ex.P.1 : Cheque
Ex.P.1(a) : Signature of accused
Ex.P.2 : Bank memo
Ex.P.3 : Office copy of Legal notice
Ex.P.4 : Postal receipt
Ex.P.5 : Postal acknowledgement
Ex.P.6 : Certified copy of Order sheet in OS
No.6422/2019
Ex.P 7 : Certified copy of Decree in
OS No.6422/2019
Ex.P.8 : True copy of compromise petition
Ex.P.9 : Statement of accounts related to
loan account of accused
Ex.P.10 : Statement of CD account of the
accused
SCCH-24 19 C.C.7344/2022
Ex.P.11 : Certificate of under Sec.65 B of
Indian Evidence Act
LIST OF WITNESSES EXAMINED BY THE ACCUSED
- DW.1 - : - Sharavana M
-
LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:
Ex.D1 : S Cash challen 4 in nos for having paid in all sum of Rs.90 thousand towards cheque amount XXII Addl. SCJ & ACJM Bengaluru.