Bangalore District Court
Dr.R.K.Farhana vs Mrs.Srimathi Narayan on 5 March, 2022
1 Crl.A.No.2271/2019
KABC010330942019
IN THE COURT OF THE LIX ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-60) AT BENGALURU)
Dated this 05th day of March, 2022
-: P R E S E N T :-
Sri.Sadananda Nagappa Naik,B.A.L, L.L.B.,
LIX ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-60
BENGALURU CITY.
Crl.Appeal No.2271/2019
APPELLANT: Dr.R.K.Farhana,
Aged about 43 years,
D/o Rashid Khan,
R/at Flat No.E-301, 3rd Floor,
Abodh Valmark Apartments,
BBMP Khatha No.141/35/13,
Veerannapalya Main Road,
Govindapura, Nagavara,
Bengaluru 560 045.
(By Sri.Prabhugoud B.Tumbigi,
Advocate)
2 Crl.A.No.2271/2019
RESPONDENT : Mrs.Srimathi Narayan
Aged about 86 years,
W/o Late S.K.Narayan,
through her SPA Holder
Mr.Kathirvel, Sr.OPS Executive
TTK Property Services Pvt Ltd.,
(Home Shikari Division),
Ferns Icon, Ground Floor,
Outer Ring Road,
Marathahalli,
BENGALURU 560 037.
(By Sri.Lokesh Anjanappa, Advocate)
JUDG MENT
Appellant has filed this appeal U/s.374(3) of Cr.P.C.,
being aggrieved by the judgment of conviction and order
of sentence passed in C.C.No.28026/2017 dated
27.09.2019 on the file of XXII Additional Chief
Metropolitan Magistrate, Bengaluru.
2. Parties to this appeal shall be referred as per
their ranking before the trial court for the purpose of
convenience and for better appreciation of their
contentions.
3. In the memorandum of appeal, appellant has
submitted that the Court below erred in appreciating the
crux of the matter as the respondent himself claimed that
the cheque in question was issued towards payment of
rent due but failed to produce any documents. He denied
3 Crl.A.No.2271/2019
the transaction with the complainant and cheque in
question is issued for security purpose. The respondent
has no locus standi to file the complaint against the
appellant. Admittedly, there is no privity of contract
between the appellant and the respondent. The original
flat owners have given power of attorney to the
respondent which does not show how the complainant is
authorised to deal with the said premises or collect rent
or advance and further she has given power of attorney
to Kathirveil in respect of the same transaction and
property and according to law, the person who is not
delegated the power to delegate, cannot delegate his
power further to some other person and there cannot be
any sub-delegation of power. The alleged due amount
does not tally with the cheque amount and it is altered.
4. Documents produced along with appeal by the
appellant is certified copy of the order and judgment
dated 27.09.2019.
5. Respondent appeared before the Court
through her counsel and argued the matter. T.C.R. were
called for reference in this appeal.
6. Now, following are points that arise for
consideration:
4 Crl.A.No.2271/2019
1. Whether the complainant has
proved that, the Cheque was
dishonoured as "Funds Insufficient"
in the account of the accused and
thereby the accused has committed
the offence punishable under
Section 138 of the Negotiable
Instruments Act?
2. Whether in the light of evidence
and material brought before the
court, trial court is justified in
convicting accused/appellants for
the offence punishable U/s.138 of
N.I.Act and sentencing accused for
the said offence?
3. Whether interference of this court
is necessitated?
4. What Order?
7. It is answered for the aforesaid points as
under:-
Point No.1 : In the Affirmative
Point No.2 : In the Affirmative
5 Crl.A.No.2271/2019
Point No.3 : In the Negative
Point No.4 : As per final order below, for
the following:-
REASONS
8. POINTS Nos.1 to 3 :- These three points are
taken together for common discussions.
9. Brief facts of the complainant case is that she
is represented through her Power of Attorney. She is the
beneficial owner of Flat No.E-301 situated at Abodh
Wallmark Apartments within the limits of the BBMP,
Bengaluru. The children of the complainant by name
Ranganath Setlur and Miss. Nanda Setlur who are the
registered owners of the said property are residing in the
USA. The complainant being the mother is residing in
Bengaluru and the children, for her domestic and medical
expenses have arranged to receive the rents from the
said property. The accused was residing in the same
apartment and she was interested in taking the said
property on rental basis. The accused approached the
complainant through M/s Home Shikhari and after mutual
negotiations, the Flat No.E.301 was agreed to let out in
favour of the accused by fixing advance payment of
Rs.1,20,000/- and monthly rent of Rs.25,000/-. The
accused before entering into rental agreement has taken
possession of the flat on 25.04.2017. The accused paid
6 Crl.A.No.2271/2019
Rs.45,000/- once and again Rs.45,000/- and again
Rs.25,000/- towards advance amount. The accused was
not regular in paying the rents and the arrears of rent
became due for five months. Accused issued two
cheques bearing No.542630 dated 12.09.2017 for sum of
Rs.50,000/- drawn on IDBI Bank, Indiranagar Branch,
Bengaluru petitioner and another cheque No.000864
dated 12.09.2017 for sum of Rs.80,000/- drawn on ICICI
Bank, Ramamurthy Nagar Branch, Bengaluru towards
payment of arrears of rent from the month of April - May
2017 to September 2017 for total sum of Rs.1,25,000/-.
The complainant presented the cheque through her
account for encashment through Bank of India Jayanagar
4th Block Branch, Bengaluru. The cheque No.542630
came to be dishonoured for the reasons 'Funds
insufficient'. The cheque bearing No.000864 came to be
dishonoured for the reasons 'Alterations on Instruments
other than date field Alteratio" on 13.09.2017. The
complainant intimated the same to the accused
regarding dishonour of cheque. Legal notice was issued
on 11.10.2017 and it was served on the accused on
14.10.2017. Accused issued reply notice by denying the
liability and also failed to repay the loan amount.
Therefore, complainant filed complaint under Sec.200
Cr.P.C for offence punishable under Sec.138 of NI Act
against the accused.
7 Crl.A.No.2271/2019
10. Perused entire order sheets, complaint filed
under Section 200 of Cr.P.C., for the offence punishable
under Section 138 of N.I Act, sworn statement affidavit of
the complainant, plea of accusation, examination-in-chief
evidence of P.W.1 by way of affidavit, ingredients of
documents at Ex.P.1 to Ex.P19. The accused has not
adduced any defence evidence but got marked three
documents as Ex.D1 to Ex.D3. There is no procedural
defect of any nature while conducting trial relating to
private complaint registered for the offence punishable
under Section138 of N.I Act.
11. So far as appreciation of evidence is concerned,
P.W.1 Special Power of Attorney Holder of the complainant
has reiterated ingredients of the complaint in his
examination-in-chief affidavit. The accused has not
disputed that the children of the complainant namely
Ranganath Setlur and Miss.Nanda Setlur are the owners
of the property and they are residing in USA. The
accused further has not disputed that the complainant
being the mother of her children, is residing in Bengaluru
and her children have made arrangement to receive the
rents from the said property for her domestic and medical
expenses. It is also not in dispute that the accused has
taken the property on rent of Rs.25,000/- per month and
also agreed to pay Rs.1,20,000/- as advance pay. It is
evident from the contention taken by the appellant that
8 Crl.A.No.2271/2019
he is questioning the authority of the complainant.
However, she has not questioned the authority of the
complainant while taking the property on rent. Hence,
the appellant is estopped from questioning the authority
of the complainant.
12. Ex.P.1 and P2 are the Cheques. Ex.P3 and P4 are
the cheque return memos. Ex.P.5 and P6 are the legal
notices. Ex P5(a) is the postal receipt. Ex.P5(b) is the
postal acknowledgment. Thus, the complainant has
successfully discharged her initial burden of proof casts
U/s.138 of N.I.Act. Thereafter, burden shifts on the
accused as per presumptions U/s.118 and 139 of N.I.Act
in the form of reverse onus on the accused to rebut
presumptions.
13. In order to rebut the presumptions, accused has
not come forward to adduce her defence evidence.
14. The first and foremost contention of the
appellant is that the complainant has no authority to
present the complaint. The complainant in order to prove
her authority in her evidence has produced Ex.P8 Key
Delivery Acknowledgment which unequivocally proves
that the accused has taken the property on rent by
accepting Mr.Ranganath Setlur as owner of the property.
The complainant while adducing evidence has also got
9 Crl.A.No.2271/2019
marked Ex.P10 which is the challan towards payment of
Rs.45,000/- which is in favour of Srimathi Narayan.
Ex.P11 is the accounts statement of Srimathi Narayan
wherein the transaction is reflected on 24.04.2017. It
further shows that NEFT transaction made by the accused
to the account of Srimathi Narayan. Therefore, the
accused has admitted the landlord relationship. The
complainant also relied on the Power of Attorney
executed by the owners of the property. Ex.P13 is the
Special Power of Attorney executed by Ranganath Setlur
on 13.10.2017 and authorised his mother to let out the
premises. Since the legal notice was issued on
11.10.2017 which is much prior to execution of Ex.P.13,
Nanda Setlur has executed another Power of Attorney as
per Ex.P.14 dated 10.11.2017. Hence, the complainant
has made out her case that she had authority to file the
complaint.
15. Another point urged by the appellant is that the
cheques are issued for security purpose. The
complainant has not at all stated in her complaint that
the she lent any loan to the accused. The complaint is
limited to the trial and adjudication of legally enforceable
debt or liability. The disputed cheques are issued by the
accused in the name of complainant. She is aged about
87 years as stated by the appellant in the cause to the
10 Crl.A.No.2271/2019
appellant. Therefore, certainly, she has executed the
Power of Attorney dated 15.11.2017 to prosecute the
case. The accused has not disputed the delivery of the
property. She was inducted in the premises as a tenant.
The contention taken by the appellant, averments made
in the complaint and also the evidence adduced by PW 1,
clearly reveals that the accused has admitted that
complainant Srimathi Narayana as the receiver for rent
and advance amount.
16. The Ex.D3 marked by the accused establish that
there is original suit pending between the complainant
and the accused. Therefore, heavy burden lies on the
accused to explain as to why she has paid Rs.45,000/-
twice and explain as to the purpose. It is the contention
of the complainant that the accused was due of arrears of
rent from May 2017 to September 2017. PW 1 has
unequivocally deposed that the accused has not paid
single rupee towards the rent. The accused has not
stepped into witness box to prove her defence.
17. The next contention of the accused is that the
cheques are issued for collateral security. It is pertinent
to note the settled position of law that even the cheque
which are issued for security purpose also come within
the purview of Section 138 of N.I.Act in constituting an
offence. From the reply notice issued by the accused, it
11 Crl.A.No.2271/2019
clearly reveals that the accused is irregular in making
payment of rent. Therefore, it is presumed that the
cheques in question issued by the accused for
enforceable liability. The accused has failed to rebut the
presumption. Under Section 139 of N.I.Act, it shall
presumed that unless the contrary is proved the holder of
the cheque received for discharge of the whole or in part
of any debt or other liability. Therefore, the trial Court has
rightly convicted the accused person.
18. In addition to that accused didn't produce any
documents to show that, accused filed any complaint
before jurisdictional police against complainant for
misuse of her cheques. Accused did not produce any
document to show that she filed private complaint before
the jurisdictional Magistrate in this regard. Accused not
even produced any documents to show that, she
instructed her banker to 'stop payment' when bounced
cheques are presented for realization to show that she is
not liable to make any payment under the bounced
cheques.
19. This Court has compared reasons assigned by
the trial court in the impugned judgment of conviction as
discussed above with the allegations made in the
memorandum of appeal. No grounds are made out in the
12 Crl.A.No.2271/2019
memorandum of appeal to interfere into the Impugned
judgment of conviction.
20. So far as quantum of punishment is concerned,
fine of Rs.1,60,000/-(Rupees one lakh and sixty thousand)
was imposed for dishonor of two cheques for Rs.50,000/-
and another one Rs.80,000/-). In default of payment of
fine, accused shall undergo simple imprisonment for
three months. Out of the fine amount, Rs.2,000/- is
ordered to the State Exchequer. Fine amount imposed is
within the purview of Section 138 of N.I.Act. Appellant
failed to show that sentence imposed is exorbitant.
Accused/appellant failed to show that quantum of fine
imposed is excessive. There is no merit in the appeal.
Order under appeal is sustainable in law. Hence,
interference of this court is not necessary. Accordingly,
point Nos.1 and 2 are answered in the Affirmative and
point No.3 is in the Negative.
21. POINT No.4 :- In view of findings on the
above points No.1 to 3, this criminal appeal is devoid of
merits and same is liable to be dismissed by confirming
impugned judgment of conviction and order of sentence.
Hence, following order is made:
13 Crl.A.No.2271/2019
ORDER
Invoking provisions of Section 386 of Cr.P.C., this Criminal Appeal filed U/s. 374(3) is dismissed.
Consequently, impugned judgment of conviction and order of sentence C.C.No.28026/2017 dated 27.09.2019 on the file of court of XXII A.C.M.M is hereby confirmed.
Appellant/accused is hereby directed to appear before Trial Court to deposit the fine amount or to serve the sentence.
Office is hereby directed to send back T.C.R. along with certified copy of Judgment to the trial court, forthwith.
(Dictated to the Judgment-Writer directly on computer, script typed by him and corrected, signed and then pronounced by me in the open court on this 05 th day of March, 2022.) (Sadananda Nagappa Naik) LIX ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-60, BENGALURU CITY.
14 Crl.A.No.2271/2019For judgment by 03.09.2022 LIX ACC & SJ, BENGALURU 03.03.2022 Appellant : ABJ Respondent: LA For judgment 05.03.2022 Appellant : ABJ Respondent: LA For judgment Orders pronounced in the open Court vide separate orders.
ORDER Invoking provisions of Section 386 of Cr.P.C., this Criminal Appeal filed U/s. 374(3) is dismissed.
15 Crl.A.No.2271/2019Consequently, impugned judgment of conviction and order of sentence C.C.No.28026/2017 dated 27.09.2019 on the file of court of XXII A.C.M.M is hereby confirmed.
Appellant/accused is hereby directed to appear before Trial Court to deposit the fine amount or to serve the sentence.
Office is hereby directed to send back T.C.R. along with certified copy of Judgment to the trial court, forthwith.
(Sadananda Nagappa Naik) LIX ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-60, BENGALURU CITY.