Manjunatha Builders vs I.C. Gopinath

Shivashankar Amarannavar, J

This appeal is filed by the complainant praying to set aside the order dated 22.04.2022 passed in C.C.No.2110/2020 by the XV Additional Chief Metropolitan Magistrate, Bengaluru, whereunder the complaint has been dismissed as not pressed on the joint memo.

Heard learned counsel for the appellant and respondent.

The appellant –complainant has initiated the proceedings against the respondent –accused for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (Hereinafter referred to as “N.I Act” for brevity). During the pendency of the said proceedings, a joint memo dated 13.11.2020 came to be filed and it is signed by the appellant –complainant, respondent – accused and their respective counsels. Based on the said joint memo, the impugned order has been passed stating that the terms of the joint memo appears to have been complied and the complaint has been dismissed as not pressed. The said order has been challenged by the appellant –complainant in this appeal.

Learned counsel for the appellant –complainant submits that the terms of the said joint memo has not been complied by the respondent –accused. Therefore, the dismissing the complaint based on the said joint memo is not proper and correct. With this he prays to allow the appeal.

Learned counsel for the respondent –accused submits that even though the respondent –accused has not signed as consenting witness to deeds but otherwise the terms of the joint memo are complied. With this he prays for dismissal of the appeal.

The appellant –complainant and respondent – accused have signed to a joint memo along with their respective counsels and it is dated 13.11.2020. The joint memo reads as under:

“JOINT MEMO

The above named Complainant, Accused and their respective counsels submits as follows:

It is submitted that the above case is filed by the Complainant against the Accused for dishonor of four Cheques amounting to a total sum of Rs.7,00,00,000/- (Rupees Seven Crore Only).

It is submitted that both the Complainant and the Accused on the intervention of friends and well-wishers have settled the matter out of Court, wherein the Complainant has agreed to withdraw the above case subject to the Accused singing as a Consenting Witness to the deeds in respect of Sy. No.4 measuring 5:22 (A/G) and Sy. No.3 measuring 0:17 (A/G) of Indrasanahali Village, Kundana Hobli, Devanahalli Taluk before the Sub-registrar, Devanahalli.

It is submitted that the Accused on signing the aforesaid deeds to be executed on 17/11/2020 the Complainant is ready to withdrawn the above Complaint as not pressed/dismissed representing that there would be no claim against the Accused in respect of the subject Cheques.

WHEREFORE, both the Complainant and the Accused in consideration of the above humbly prays that this Hon’ble Court be pleased to dismiss the above suit as not pressed/dismissed in the interest of justice. “

Learned counsel for the appellant submits that para No.2 of said joint memo has not been complied by the respondent –accused. He further submits that he has not signed as consenting witness to deeds in respect of Sy.No.4 measuring 02 acres 22 guntas and Sy No.3 measuring 0.17 guntas both situated in Indrasanahalli village.

Learned counsel for the respondent has placed two documents on record namely agreement of sale both dated 24.11.2020. The said documents pertains to land bearing Sy.No.4 measuring 02 acres 22 guntas and bearing Sy.No.3 measuring 17 guntas of Indrasanahalli village.

On perusal of the said two documents, the respondent –accused has not signed as consenting witness. Considering the said aspect, para No.2 of the joint memo has not been complied by the respondent – accused. As para No.2 of the joint memo has not been complied by the respondent –accused, the dismissal of the complaint as not pressed stating that the terms of the joint memo appears to have been complied is not proper and correct. Therefore, the said impugned order requires to be set aside and criminal case requires to be restored.

In the result, the following

ORDER

i) The appeal is allowed.

ii) The impugned order dated 22.04.2022 passed in C.C.No.2110/2020 by the XV Additional Chief Metropolitan Magistrate, Bengaluru is set aside. The criminal case No.2110/2020 is ordered to be restored.

iii) Parties are directed to appear before the trial Court on 20.03.2025 without awaiting Court notice.

iv) The trial Court is directed to proceed with the matter on merits.

v) Registry is directed to send copy of this order to the concerned trial Court forthwith.

In view of the above, IA No.2/2022 seeking grant of special leave is allowed.