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2019 DIGILAW 1977 (KAR)

Manjula v. K. Venugopalraju

2019-09-11

K.SOMASHEKAR

body2019
JUDGMENT : K Somashekar, J. In this petition challenging the judgment rendered by the First Appellate Court in Crl.A.No.27/2016, dated 22.04.2019, whereby dismissal of the appeal by confirming the judgment of conviction and order of sentence passed by the trial Court in C.C.No.836/2012, dated 17.08.2016 for the offence punishable under Section 138 of N.I.Act, which is incorporated in the operative portion of the order. 2. Factual matrix of this petition are as under: It is stated in the complaint that the complainant and the accused are well known to each other. The complainant had land at Shivamogga District. The accused is the owner and possessor of the land bearing Sy.No.01, measuring 4 acres 35 guntas situated at Bandigudda village. She agreed to grow Areca nuts in her property and agreed that after growing the Areca nuts will be handed over to complainant. Thus, the accused received Rs.3,00,000/- in cash from the complainant on 7.7.2006. In that regard, the accused executed an agreement on the stamp paper. The father of accused by name Kalappa S/o Rangappa has also owned property in Sy.No.01, measuring 4 acres 20 Guntas and received a sum of Rs.3,00,000/- for the same purpose and got executed agreement in favour of complainant. The accused and her father did not grow Areca nuts in their property and they were paying interest on Rs.6,00,000/-. In the mean while, the complainant sold his property at Shivamogga district and shifted his family to Gangavathi. The complainant approached the accused several times and demanded to pay a sum of Rs.6,00,000/- on 10.01.2012. The complainant conducted a panchayath at Bandigudda village. In the said panchayath, waived interest on Rs.6,00,000/- and agreed to receive the principal sum of Rs.6,00,000/. On the same day, accused issued a cheque bearing No.307364, for a sum of Rs.6,00,000/- drawn on Karnataka Bank, Holehonnur Branch. At that time, accused promised that cheque will be honored on its presentation. The complainant presented the cheque for collection on 24.02.2012 at Axis Bank, Maranahalli Branch through his account. But said cheque was dishonoured on 09.04.2012 with an endorsement 'funds insufficient' in the account of the account holder. Consequently, the complainant has followed requisite conditions as stipulated under Section 138 of N.I. Act and issued legal notice demanding repayment of said amount on 18.04.2012 and the same was duly served on 21.05.2012. But said cheque was dishonoured on 09.04.2012 with an endorsement 'funds insufficient' in the account of the account holder. Consequently, the complainant has followed requisite conditions as stipulated under Section 138 of N.I. Act and issued legal notice demanding repayment of said amount on 18.04.2012 and the same was duly served on 21.05.2012. In spite of service of notice, accused neither paid the cheque amount nor issued any reply. Consequently, initiation of the proceedings against the accused in P.C. No.80/2012, wherein sworn statement of the complainant recorded and thereafter initiated the proceedings in C.C. No.836/2012. In order to establish the case, the complainant got himself examined as PW.1 and got examined three witnesses as PWs.2 to 4, so also got marked Exs.P.1 to P.20. Consequently, the statement as contemplated under Section 313 of Cr.P.C., has been recorded but the accused has denied the truth of the evidence. On the other hand, accused herself examined as DW.1 and got marked 29 documents as EXs.D.1 to D.29. Subsequently, the trial Court heard the arguments of the learned counsel for the complainant and the accused, wherein the trial Court held conviction of the accused for the offence punishable under Section 138 of the N.I. Act and sentenced to pay a fine of Rs.8,43,000/-, so also acting under Section 357(1)(a) of Cr.P.C. a sum of Rs.5,000/- defrayed as prosecution. The same has been indicated in the operative portion of the judgment rendered by the trial Court in C.C. No.836/2012. 3. The accused has preferred an appeal against the judgment of conviction and order of sentence passed by the First Appellate Court in Crl.A.No.27/2016, whereby the appeal was came to be dismissed in its order dated 22.04.2019 by confirming the judgment of conviction and order of sentence held by the trial Court in C.C.No.836/2012 dated 17.08.2016 for the offence punishable under Section 138 of N.I.Act. 4. The petitioner being an accused, the respondent said to be the complainant have filed an application under Section 320 of Cr.P.C. R/w. Section 147 of N.I.Act. This application is supported with an affidavit filed by Smt.Manjula, who is stated to be an accused for the offence punishable under Section 138 of N.I.Act. In this application seeking to acquit the accused for the offence punishable under Section 138 of N.I.Act. 5. This application is supported with an affidavit filed by Smt.Manjula, who is stated to be an accused for the offence punishable under Section 138 of N.I.Act. In this application seeking to acquit the accused for the offence punishable under Section 138 of N.I.Act. 5. It is further stated in the affidavit filed by her that herself and the complainant being arraigned as respondent herein have arrived at a amicable settlement, wherein an amount of Rs.3,00,000/- is agreed to be paid and released in favour of the complainant out of Rs.4,49,000/- deposited before the trial Court in C.C. No.836/2012 and remaining amount of Rs.1,49,000/- is agreed to be released in favour of the accused. 6. In terms of the aforesaid reasons stated in the affidavit filed by her, the matter between the petitioner and the respondent herein is agreeable to both the parties. Therefore, the joint application has been filed for disposal of the case by acquitting her for the offence punishable under Section 138 of N.I. Act as held by the trial Court in C.C. No.836/2012 dated 22.04.2019. 7. In the joint memo filed by both the parties, it has been specifically stated that on the advise of the well wishers and also elderly members of both the parties, they have reached for an amicable settlement and in pursuance of the same, presented the joint memo along with the application filed by the petitioner and the respondent. The petitioner and the respondent herein have agreed that out of the said sum of Rs.4,49,000/- deposited before the trial Court in C.C. No.836/2012, the sum of Rs.3,00,000/- shall be released in favour of respondent/complainant towards full and final settlement of his claim in the application filed by her and the remaining sum of Rs.1,49,000/- shall be released in favour of the present petitioner/accused namely Smt.Manjula . 8. The application filed by both the complainant and the accused being arraigned as petitioner namely Manjula and the respondent K.Venugopala Raju, so also the averments made in the joint memo, the contentions in the application and also contents in the joint memo filed by them have been apprised to them in the presence of both the learned counsel for the parties. 9. The parties in this petition are agreeable with the terms stated there in joint application and also joint memo in order to settle their issues amicably. 9. The parties in this petition are agreeable with the terms stated there in joint application and also joint memo in order to settle their issues amicably. Therefore, the application has been filed by the petitioner and the respondent under Section 320 of Cr.P.C. R/w. Section 147 of the N.I. Act. 10. The application jointly filed by them is hereby accepted. Consequently, the judgment rendered by the First Appellate Court in Crl.A.No.27/2016 dated 22.04.2019, whereby dismissal of the appeal by confirming the judgment and conviction and order of sentence passed by the Additional Civil Judge and JMFC Court, Gangavathi in C.C. No.836/2012 is hereby set aside. 11. A sum of Rs.3,00,000/- shall be released in favour of the respondent - complainant herein and remaining sum of Rs.1,49,000/- shall be released in favour of the petitioner - accused in this petition with due identification. Ordered accordingly.