Sri.Vasanth.D.N vs Mr.Lokesh.

K on 3 September, 2022

Bangalore District Court

Sri.Vasanth.D.N vs Mr.Lokesh.K on 3 September, 2022
KABC030846352019

Presented on : 16-11-2019
Registered on : 16-11-2019
Decided on : 03-09-2022
Duration : 2 years, 9 months, 17 days

IN THE COURT OF XX ADDL.CHIEF METROPOLITAN

MAGISTRATE AT BENGALURU CITY

PRESENT: BHOLA PANDIT,

B.Com.,LL.M.,
XX ADDL. C.M.M.
Bengaluru.

Dated this the 3rd day of September 2022

C.C.No.27320/2019

Complainant : Sri.Vasanth.D.N.,
S/o Umapathi,
Major,
R/at.No.390, 5th Cross,
2nd Main, Prakruthi Badavane,
Behind Jindal Nagar,
Anchepalya, Nagasandra Post,
Bengaluru- 560 073.

{ By Sri.Devaraju.K. - Advocate }
2
C.C.27320/2019
Vs.

Accused : Mr.Lokesh.K.
S/o Kumbiah,
Age 40 years,
R/at.No.587, Thotadaguddadahalli,
Shivakumar Swamiji Layout,
Byraveshwara Circle, Near Adike Thota,
Bengaluru- 560 073.

{ By Sri.Manjunatha.N.M. - Advocate }

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 Sri.Vasanth.D.N vs Mr.Lokesh.K on 3 September, 2022

Offence complained : U/S. 138 of N.I. Act.,

Plea of accused : Pleaded not guilty

Final Order : Accused is Convicted

Date of Order : 03-09-2022

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C.C.27320/2019
JUDGMENT

The present complaint is filed under section 2(d) read with section 200 of code of criminal
procedure against the accused seeking to punish him for the offence punishable under section 138 of
the Negotiable Instruments Act ( in short referred as "N.I. Act").

02. The factual matrix of the complaint is summarized as under;

It is alleged in the complaint that, during the third week of September 2017, through Mr.
Santhosh.D.S., the accused had availed hand loan of Rs.1,00,000/- from the complainant on two
occasions i.e., by way of account transfer on 14.09.2017 for Rs.50,000/- and by way of cash on
25.09.2019 for Rs.50,000/- for school fees and to meet medical expenses of his brother and agreed
to repay the same within one and half year. Towards discharge of his C.C.27320/2019 liability,
accused has issued post dated cheque bearing No.000042 dated 01.08.2019 for Rs.1,00,000/-,
drawn on Punjab & Maharashtra Co-Operative Bank Limited, Multi-State Scheduled Bank,
Bagalagunte Branch, Bengaluru. Complainant presented the said cheque for encashment through
his banker i.e., Banker ICICI Bank, 8 th Mail, T.Dasarahalli Branch, Bengaluru and the said cheque
returned with an endorsement "Funds Insufficient" , dated 02.08.2019. Thereafter, complainant got
issued legal notice on 28.08.2019 to accused. The notice was duly served to the accused on
29.08.2019. Accused neither replied the notice nor paid the cheque amount. It is contended that,
accused intentionally not maintained sufficient amount in his bank account to honour the cheque
issued in favour of the complainant towards discharge of legally enforceable debt. On these
allegations, present complaint is filed.

C.C.27320/2019

03. On presentation of complaint, this court has verified the averments of complaint along with
records and thereby had taken cognizance for the offence punishable under section 138 of NI Act.
Thereby, as per the verdict of the Hon'ble Apex court reported in AIR 2014 SC 1983 in the case of
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 Sri.Vasanth.D.N vs Mr.Lokesh.K on 3 September, 2022

Indian Bank Association and others V/s Union of India and others, the sworn statement of the
complainant has been recorded as PW.1 and got exhibited five documents at Ex.P.01 to 05. Having
been made out the prima-facie case, the complaint has been registered in Register No. III and issued
process against the accused.

04. In response to the summons, the accused put his appearance before the court through his
counsel and filed bail application under section 436 of Code of Criminal Procedure, the accused has
been enlarged on bail. The substance of accusation has been recorded and read over
C.C.27320/2019 to the accused, he pleaded not guilty and intends to put forth his defense. On filing
application by the complainant under section 145(1) of NI Act, sworn statement of the complainant
has been treated as examination in chief. Similarly, on filing application under section 145(2) of NI
Act, the accused has been permitted to cross examine PW.1. On 04.07.2022 cross examination of
PW.1 taken as nil, then case was posted for 313 statement by 02.08.2022. On 02.08.2022, the
statement of accused under section 313 of Code of Criminal Procedure has been recorded and read
over to the accused, the incriminating material found in the trial of the case of the complainant. The
accused has denied the same in toto. On the same day, defense counsel filed IA under section 311 of
Code of Criminal Procedure and the same is allowed then, case was posted for cross examination of
PW.1 by 26.08.022, on the very same day PW.1 absent then case was posted or cross examination of
C.C.27320/2019 complainant on 29.08.2022. On 29.08.2022, both parties and their counsels filed
Joint memo and submitted that, judgment may be passed in accordance with the said memo.

05. Heard and perused the materials on record.

06. The points that arise for my consideration are as follows;

POINTS

1. Whether the accused is liable to be convicted in terms of Joint memo dated

29.08.2022?

2. What Order?

07. Now my answer to the above points is as follows;

1. Point No.1: In the affirmative

2. Point No.2: As per final order for the following;

C.C.27320/2019 REASONS

08. POINT No.1: Complainant has filed this complaint alleging that accused has committed offence
under section 138 of N.I. Act. He pleads and asserts that, towards discharge of his liability, accused
has issued a cheque for Rs.01,00,000/-. The said cheque came to be dishonoured on presentation.
Complainant has issued notice within time stipulated calling upon the accused to pay the amount

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 Sri.Vasanth.D.N vs Mr.Lokesh.K on 3 September, 2022

covered under cheque. Inspite of service of notice accused has not paid the amount within 15 days,
which gave raise cause of action to file this complaint. He further relied on the documents from
Ex.P.01 to 05.

09. In this scenario, let us scrutinize the documents relied by complainant in order to examine the
compliance of statutory requirements envisaged under section 138 of N.I. Act. Ex.P.1 is cheque
dated 01.08.2019, Ex.P.1(a) is the C.C.27320/2019 signature of accused, Ex.P.2 is bank
endorsement dated 02.08.2019, Ex.P.3 is legal notice dated 28.08.2019, Ex.P.4 is postal receipt and
Ex.P.5 is the Postal acknowledgement. This complaint came to be filed on 11.10.2019. A careful
scrutiny of the documents relied by the complainant goes to show that, statutory requirements of
section 138 of N.I. Act is complied with and this complaint is filed within time. Thus, complainant
relied on the statutory presumptions enshrined under section 118 read with section 139 of N.I. Act.

10. The presumption under sec.118 and 139 of the Act is in favour of the complainant. To rebut
presumption, accused neither cross-examined PW.1 nor adduced any evidence on their behalf. Thus,
chief-examination version of PW.1 remains uncontroverted.

C.C.27320/2019

11. On 29.08.2022, parties have filed a joint memo stating that the matter is settled between them
for a sum of Rs.40,000/- as full and final settlement. Accused agreed to pay the said amount within
4 months from the date of judgment towards the said cheque amount. If the accused failed to make
payment, the accused may be convicted as prayed in the complaint.

12. Considering the joint memo and submission of learned counsel for complainant and the accused,
I deem it proper to grant time to the accused for payment of the amount to the complainant. Thus,
material available on record clearly discloses that the complainant has complied all the ingredients
of section 139 of Negotiable Instrument Act.

C.C.27320/2019

13. In view of foregoing discussions, I am of the opinion that, the complainant has established that
the accused has committed an offence punishable under section 138 of Negotiable Instrument Act.
The memo filed by the complainant and accused is sufficient to answer point No.1 in the affirmative.

14. POINT NO.2: In view of the reasons stated and discussed on point No.1, I proceed to pass the
following;

ORDER Acting under section 255 (2) of Criminal Procedure Code, accused is hereby
convicted for the offence punishable under section 138 of Negotiable Instrument Act
and is sentenced to pay a fine of Rs.40,000/-

C.C.27320/2019 (Rupees Forty Thousand only) as settled in the joint memo.

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 Sri.Vasanth.D.N vs Mr.Lokesh.K on 3 September, 2022

When the said amount is deposited, same shall be paid to the complainant as compensation.

Terms and conditions of the joint memo becomes part and parcel of this order.

In default of payment of the fine amount as agreed upon, accused shall undergo simple
imprisonment for 1 (One) month.

The bail bond of the accused stands canceled.

C.C.27320/2019 Office to supply the copy of this Judgment to the accused immediately on free of
cost.

{Dictated to the stenographer directly on computer, corrected and then signed by me and then
pronounced in the open court on this 3 rd day of September 2022}.

(BHOLA PANDIT), XX ACMM, Bengaluru.

ANNEXURE List of witnesses examined on behalf of Complainant:

P.W.1 Mr.Vasanth.D.N.

List of documents produced on behalf of complainant:

Ex.P.1 Cheque

Ex.P.1(a) Signature of accused

C.C.27320/2019
Ex.P. 2 Bank endorsement

Ex.P. 3 Copy of the legal notice

Ex.P. 4 Postal receipt

Ex.P.5 Postal acknowledgement

List of witnesses examined on behalf of accused:

-Nil-

List of documents produced on behalf of accused:

-Nil-

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 Sri.Vasanth.D.N vs Mr.Lokesh.K on 3 September, 2022

XX A.C.M.M., Bengaluru.

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