Bangalore District Court
Tata Capital Services Ltd vs Anand Gupta on 2 December, 2024
1 CC No.12719/2022
KABC020323922022
IN THE COURT OF THE XVIII ADDITIONAL JUDGE, SMALL CAUSES
& ACJM AT BENGALURU
Dated this the 2nd day of December, 2024
Present: Smt. Gayathri S Kate,
B.Com., LL.B.
XVIII Addl JUDGE & ACJM,
Court of Small Causes,
Bangalore.
C.C.No.12719/2022
M/s TATA Capital Financial Services Ltd.,
Registered Office at Dr.V.B.Gandhi Marg,
Fort Mumbai-400 001.
Branch Office No.82/1, 2nd Floor,
Krishna Towers, Richmond Road,
Bengaluru-560 025.
Represented by it's POA Holder,
Mr.Renu V.M. S/o Mallesh D.H.,
Aged about 39 years.
.....COMPLAINANT
(Rep.By Sri. RR., Adv.)
/Versus/
Anand Gupta,
# 113, 2A Cross, Shiradi Sai Rathan Layout,
Dr.Shivaramkaranth Nagara,
Near Post Office,
Bengaluru-560 077.
.......ACCUSED
(Rep.By Sri.BNSS.,Adv.)
2 CC No.12719/2022
Plea of accused: Pleaded not guilty
Final Order: Accused is Convicted
Date of judgment : 02.12.2024
JUDGMENT
The complainant filed the complaint under Sec.200 Cr.P.C. against the accused for the offence punishable under Sec.138 and 142 of Negotiable Instruments Act (For short N.I.Act).
2. The brief facts of the complainant case is as under:
It is submitted that, the complainant is a public limited company incorporated under the companies Act 1956 and registered with the Reserve Bank of India under Section 45-1A of the Reserve Bank of India Act 1934 and classified as a Systemically important Non-Deposit Accepting Non-Banking Financial Company(NBFC) carrying on the business providing various financial services as such as car loans, personal loans, business loan, consumer finance, home loan, investment, insurance and etc for it's various customers across the country for the benefit of their customers on the basis of applications of the perspective customers and upon executing require documents and declarations by the 3 CC No.12719/2022 customers. Mr.Renu V.M. is the authorized representative under the Power of Attorney to represent on behalf of the complainant.
It is submitted that the complainant, the accused had applied for sanction of personal loan finance, the complainant also disbursed the same as requested by the accused vide Loan account No.TCFPL0485000010769751 and the accused have also agreed to abide by the terms and conditions and agreed to repay the loan amount in equated monthly installments without fail or any delay.
It is submitted that, the accused have opted electronic clearance system i.e., NACH (Authorized Electronic Clearance System) towards to make the repayments of EMI's dues to the complainant, as per that the accused have issued Debit Mandate to the Complainant by giving authority to debit amounts from the accused account/s for a certain period. Accordingly a unique Mandate Reference No.(UMRN) HDFC2020016000001109 was generated to the accused bank account No.531140006032 maintained in HDFC Bank Ltd., for to hassle free transaction. Further the accused has also assured the complainant that sufficient funds will be made available in the account to honor NACH when the complainant debits are raised in respect payment, 4 CC No.12719/2022 further the NACH debits/instruction which authorized for to collect the payment for the month of June 2022 for a sum of Rs.14,18,527/- issued in respect of the accused loan account which has been processed for debit/encashment, through its bankers, HDFC Bank Ltd., Richmond Road, Bengaluru but the same came to be dishonored with a remark of "Balance Insufficient" on 22.06.2022. Thereafter, the complainant issued legal notice dated 13.07.2022 to the accused by calling upon him to pay the amount covered under the NACH within the stipulated period. Inspite of service of notice, accused failed to repay the amount covered under NACH. Hence, the complainant constrained to file the present complaint against the accused for the offence punishable under section 200 of CrPC R/w Section 25 and 27 of the Payment and Settlement Systems Act.
3. After filing of the complaint, cognizance has been taken and sworn statement recorded and got marked the documents as Ex.P.1 to Ex.P.6. The complainant has complied all the statutory requirements under Sec.138 of N.I.Act. On the other hand, accused has not complied with the demand notice issued by the complainant nor made the payment within the stipulated period. 5 CC No.12719/2022 Thereafter, the case is registered against the accused and summons issued. Pursuant to issuance of summons, the accused appeared through his Counsel and enlarged on bail. Plea recorded.
4. Subsequently, when the matter was posted for cross of PW.1, at that time, both parties appeared before the court and filed a Joint Memo as matter was amicably settled between the parties out of the court. The parties submitted before the court that they agree to the Joint memo terms. Both the side prayed to pass judgment taking into consideration the joint memo filed by the parties.
5. Heard arguments and perused the material on record.
6. On the basis of the contents of the complaint the following points arise for my consideration :
1. Whether the complainant proves that the accused has committed an offence punishable U/s.138 and 142 N.I Act as alleged in the complaint?
2. Whether both the complainant and the accused have settled the dispute by way of filing joint memo for a sum of Rs.4,05,000/-?
3. What order?
7. My findings to the above points are as follows:
Point No.1 & 2 : In the affirmative.
Point No.3 : As per final order
6 CC No.12719/2022
for the following.
REASONS
8.Point No.1&2 : The complainant filed the complaint alleging that accused has availed loan of Rs.14,18,527/- from the complainant. Accused failed to keep his assurance and issued NACH in dispute. The said NACH was dishonored. Thereafter complainant issued legal notice, despite of service of notice accused fail to comply it. The accused committed an offence punishable U/s.138 Negotiable Instrument Act. After recording the sworn statement and pursuant to issuance of summons, the accused appeared through his counsel and enlarged on bail. Plea substance is read over and explained, accused pleads not guilty and claimed for trial. Subsequently, during trial, complainant lead evidence and got marked the documents as Ex.P1 to Ex.P.6 and when the matter was posted for cross-examination both the parties appeared through their respective counsel and filed joint memo on 27.11.2024. Under the joint memo the matter has been settled amount of Rs.4,05,000/- out of said amount of Rs.14,18,527/- and the accused agreed to pay the said settlement amount as per the joint memo terms:
7 CC No.12719/2022
Date Amount
22.11.2024 Rs. 5,000/-
(Paid on)
20.12.2024 Rs. 4,00,000/-
Total Rs.4,05,000/-
9. In this case, it is to be considered by the court that whether the mandatory requirement as mentioned u/s.138 and 142 Negotiable Instrument Act has been complied with or not. The NACH issued by the accused is June-2022 and the Bank endorsement is dt.22.06.2022. That on 13.07.2022 the legal notice is issued through RPAD. The complaint is filed on 06.09.2022. It is evident that the NACH was presented for encashment within the valid time. Notice demanding the NACH amount and filing of the complaint before the court after service of notice are within the period specified. Hence, provisions mentioned under Sec.138 of N.I.Act is duly complied with. Consequently, legal presumption u/s.139 & 118 of N.I.Act exists in favour of the complainant. But during trial when reasonable opportunity is extended in favour of the accused to rebut the above said legal presumption, at that time, both the parties approached with joint memo. Therefore, it is crystal clear that the accused has not paid the NACH amount and 8 CC No.12719/2022 admits the guilt.
10. Upon appreciation of the materials, this court is of the opinion that the accused failed to prove that he has not issued the NACH towards discharge of legally enforceable debt. On the contrary, the complainant has proved that the accused issued the cheque in question towards discharge of legally enforceable debt. When the said cheque was presented the same has been dishonored. Hence in this regard a notice has been issued against the accused. Despite service of notice, the accused has not paid the cheque amount nor replied to the notice. Hence, the court is of the opinion that the complainant has material evidence in order to prove guilt of the accused, as accused has committed an offence punishable u/s.138 Negotiable Instrument Act. Subsequently, both the parties settled the case by way of joint memo. Hence, Point No.1 & 2 are answered in the Affirmative.
11 . 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. The joint memo has been filed by the complainant and the accused before this court. Hence, accused admitted guilt. 9 CC No.12719/2022 Hence, admitted facts need not be proved. As per joint memo accused agreed to pay settled amount of Rs.4,05,000/- and the accused agreed to paid settlement amount in two installments. Further both the parties i.e the complainant and the accused have requested to pass the judgment for payment of agreed amount as per the joint memo as compensation to the complainant. Hence, in view of this I proceed to pass the following :
ORDER Acting u/s.264 Cr.P.C , the accused is hereby convicted for the offence punishable u/s.138 Negotiable Instrument Act and accused is sentenced to pay fine of Rs.4,05,000/- to the complainant as under towards full and final settlement.
As per Joint memo the matter has been settled amount of Rs.4,05,000/- as full and final settlement, accused agreed to paid the settlement amount i.e., Date Amount 22.11.2024 Rs. 5,000/-
(Paid on) 20.12.2024 Rs. 4,00,000/-
Total Rs.4,05,000/-
In default of payment of said amount the complainant is at liberty to take legal action against the accused as per law and recover double the NACH amount.10 CC No.12719/2022
The fine amount shall be paid to the complainant as compensation u/s.357 of Cr.P.C.
The contents of the memo is part and parcel of the judgment.
The bail bond of the accused and that of his surety if any stand canceled automatically on payment of entire amount.
The office is hereby directed to supply free copy of the judgment to the accused.
(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 02nd day of December, 2024).
(Smt. Gayathri.S. Kate) XVIII Addl.Judge and ACJM., Court of Small Causes, Bengaluru.
ANNEXURES I. List of witness examined on behalf of the complainant:-
PW-1 : Sri.Renu V.M.,
II. List of Witness examined on behalf of the Defence:-
NIL
III. List of documents marked on behalf of the
complainant:-
Ex.P-1 : Certified copy of NACH
Ex.P-2 : Bank return memo
Ex.P-3 : Legal notice
Ex.P-4 : Postal receipt
Ex.P-5 : Unserved RPAD cover
11 CC No.12719/2022
Ex.P-6 : Section 65 B of Indian Evidence Act
IV. List of documents marked on behalf of for the Defence:-
NIL (Smt. Gayathri.S. Kate) XVIII Addl.Judge and ACJM., Court of Small Causes, Bengaluru.