Bangalore District Court
M.Armugam vs Smt.N.R.Rekha on 4 April, 2022
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Crl.A.No.2190/2018
KABC010301532018
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-56)
:Present:
Sri. Krishnamurthy R. Padasalgi,
B.Sc., LL.M., HDSE
LV Addl. City Civil & Sessions Judge,
Bengaluru.
Crl.A.No.2190/2018
DATE: THE 4th DAY OF APRIL, 2022.
APPELLANT/S M.Armugam
Aged about 56 years
S/o. Late Muniswamy,
Proprietor-M/s.M.G.
Enterprises
No.41/A, Kempe Gowda
Industrial Estate
Thigalapalya Main Road,
Bengaluru- 58.
(Rep. By Sri.S.P.- Adv.)
Versus
RESPONDENT: Smt.N.R.Rekha
Aged about 58 years
W/o.N.V.Ramesh,
Proprietrix
M/s.Srinidhi Metals
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Crl.A.No.2190/2018
No.156, 2nd N Cross,
M.Ramaiah Layout
Peenya 2nd Stage,
Bengaluru- 560 058.
Duly Rep.by her GPA
-N.V.Ramesh.
(Rep. By Sri. GSM Adv.)
JUDGMENT
This is an appeal under Section 374(3) of Cr.P.C. by the the appellant/accused being aggrieved by the judgment and order passed by learned Judge, Court of Small Casues and XXVI A.C.M.M.,Bengaluru City in C.C.No.25980/2015 dated 03.10.2018 for convicting him for the offence punishable u/Sec.138 of N.I. Act sentencing him to pay fine amount of Rs.6,30,000/- to complainant/ respondent/respondent with fine of Rs.5,000/- to State in default simple imprisonment for a period of six months.
2. The parties will be referred as per the Rank before the trial Court.
3. The facts of the case of complainant are that, the accused has purchased metals and other materials from
-3 Crl.A.No.2190/2018 the complainant on credit basis from time to time and towards the said credit transition the accused was due to the complainant for a sum of Rs.6,05,222/-. On repeated demands and requests, the accused has issued a cheque bearing No.091627 dated 14.08.2015 for a sum of Rs.6,05,222/- drawn on Canara Bank, NSE(SSI) branch, Peenya, Bengaluru-560058 and also assured the complainant that the cheque would be honoured, on its presentation for encashment. The complainant presented the cheque through his banker Kotak Mahindra Bank, Rajajinagara Branch, Bangalore and the said cheque was returned unpaid for the reasons "Funds Insufficient" vide bank memo dated 18-08-2015. The said dishonour of cheque was brought to the notice of accused by issuing Legal Notice dated 30-08-2015 through RPAD and speed post calling upon him to pay the aforesaid cheque amount within 15 days. The demand notice issued through RPAD was duly served on accused. After receipt of the notice, the accused sent an untenable reply but not repaid the
-4 Crl.A.No.2190/2018 amount. Accordingly, complainant has filed the present complaint to take action against the accused in accordance with law and to award suitable compensation in the interest of justice and equity. Hence, the complaint.
4. The trial Court after taking cognizance issued the summons, the accused appeared enlarged on bail, plea was read over. The complainant was examined as P.W.1 and got marked 31 documents as Exs.P.1 to Ex.P.23 and accused was examined u/Sec.313 of Cr.P.C. and his answers were recorded, the accused examined himself as D.W.1 and got marked 10 documents at Ex.D1 to Ex.D10. The learned magistrate after hearing both passed the impugned order.
5. The appellants /accused has following ground for the appeal.
"Grounds for Appeal."
That the lower court passed impugned order, which is arbitrary and contrary to the law. It failed to consider
-5 Crl.A.No.2190/2018 the evidence and drawn the conclusion against the accused, which is imaginary. The complaint is filed on false averments and trial court failed to consider the points raised in written arguments. It is contended that after recording the evidence by XII ACMM u/s.326(2) of Cr.P.C., the case is transferred to Court of Small Causes and XII ACMM, Bengaluru City. The former shall be cease to exercise jurisdiction. The learned Magistrate of Small Causes Court and XXVI ACMM has continued trial of his Predecessor and convicted the accused. Provision for Summary trials is made in Chapter XXI of Code and Section 260 of Code confers power upon any Chief Judicial Magistrate or any Metropolitan Magistrate to try the case summarily. The manner in which evidence is record in summary trials is to be maintained is provided u/s.263 of the Code. Section 264 mentions that in every case tried summarily in which the accused does not plead guilty, substance of evidence is to be recorded. The power of attorney holder can not depose as he was not having
-6 Crl.A.No.2190/2018 personal knowledge and in this case, the PW.1 was power of attorney holder for complainant. In view of the Judgment of larger Bench, he could not have been examined The trial court failed to consider the dispute of Invoice bills of Ex.P2 to Ex.P7 and Ex.D5. The trial court has not properly appreciated the oral and documentary evidence. Hence, prayed to set aside the impugned order and allow the appeal.
6. After registering the appeal, notice was issued to the respondent,the respondent appeared. Heard the counsel for appellant. He filed written arguments. Despite if granting of sufficient opportunity for the respondent, he has not addressed any argument. Later, matter was posted for Judgment with liberty to file written argument. But the counsel for respondent has not filed any written arguments. perused the materials.
7. Based on the above points are that arise for consideration;
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1. Whether the trial vitiates having regard to provisions of Section 326 of Cr.P.C.?
2. Whether PW.1 was having knowledge of the transaction and competent person to depose before the court?
3. Whether the complainant proves the cheque in question was issued by the accused for legally enforceable debt of Rs.6,05,222/-?
4. Whether the complainant proves that the said Ex.P10-Cheque was dishonored and was issued to pay the same within stipulated time and as the amount was not paid by the appellant has committed offence punishable under Section 138 of N.I. Act?
5. Whether the judgment and sentence passed by the trial Court requires interference by this Court?
6. What order ?
8. The above points are answered as under:
Point No.1: In the Negative
Point No.2 : In the Negative
Point No.3 : In the Negative
Point No.4 : In the Negative
Point No.5 : In the Affirmative
Point No.6 : As per final order for the
following
REASONS
9. POINT No.1 :: Counsel for appellant has submitted that
-8 Crl.A.No.2190/2018 having regard to the Section 260 to 265, successor in office have proceeded to pass the order. He relied upon LAWS (SC) 2011 9 60 , wherein at para 14, it is held that :
"the mandatory language in which Section 326(3) is couched, leaves no manner of doubt that when a case is tried as a summary case a Magistrate, who succeeds the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. In summary proceedings, the successor Judge or Magistrate has no authority to proceed with the trial from a stage at which his predecessor has left it. The reason why the provisions of Sub-Section (1) and (2) of Section 326 of the Code have not been made applicable to summary trials is that in summary trials only substance of evidence has to be recorded. The court does not record the entire statement of witness. Therefore, the judge or the Magistrate who was recorded such substance of evidence is in a postilion to appreciate the evidence led before him and the successor Judge or Magistrate cannot appreciate the evidence only on the basis of evidence recorded by his predecessor. Section 326(3) of the code does not permit the Magistrate to act upon the substance of the evidence recorded by his predecessor, the obvious reason being that if succeeding Judge is permitted to rely upon the substance of the evidence recorded by his predecessor, the obvious reason being that if succeeding Judge is permitted to rely upon he substance of the evidence recorded by his predecessor, there will be a serious prejudice to the accused and indeed, it would be difficult for a succeeding Magistrate himself to decide the matter effectively and to do substantial justice."
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10. In this case, on perusal of the records of the trial court, earlier this case was instituted before XII ACMM, Bengaluru and later on it was transferred to Small Causes and XXVI ACMM vide Notification dated 20.11.2017 and later on the matter was proceeded. By perusal of the proceedings before the trial court, in this case, the evidence was not recorded summarily, detailed evidence is recorded and order is passed u/s.255 (2) of Cr.P.C, which clearly shows that the trial conducted as per the provisions of summons case, as contemplated under Chapter 20 of Cr.P.C.
11. In a ruling reported in 2014 (1)) SCC 494 - J.V. BAHARUNI VS STATE OF GUJARAT.
"35. Be that as it may, to satisfy ourselves we have carefully gone through the records of the Trial Court as well as the High Court in each matter before us. There is no doubt, as per the record, learned Magistrate has not specifically mentioned that the trial was conducted as summons case or summary case. Though in the record of SLP(Crl) No. 734 of 2013, at some places the word 'summary' was mentioned as regards to the nature of proceedings of the case, having given our anxious and thorough consideration, we found that the word 'summary'
-10 Crl.A.No.2190/2018 used therein was with reference to Chapter XXII of Cr.P.C., 1882 and it does not relate to the 'summary trial' envisaged under Section 143, of the N.I. Act. Pertinently, before the Trial Court the Suit No. 4457 of 2001 has been referred at some places as 'Summary Suit' and at some other places it has been referred as 'Civil Suit'. Similarly, the case number 5294 of 1998 has been shown at some places as Summary Case and at some other places it was shown as Criminal Case. After a careful examination of the record, we came to the conclusion that the word 'summary' used at some places was with reference to summary trials prescribed under Cr.P.C. Needless to say that the summary trial as preferred mode of trial in the matters related to negotiable instruments was inserted by the Amendment Act, 2002 only w.e.f. 6th February, 2003.
36. Thus the scrutiny of the record of the Courts below led us to the opinion that the High Court has not applied its mind independently by thoroughly examining the records about the procedure followed in these cases by the Magistrate. The record shows that the Complaint was lodged on 19 th August, 2000 and presented in the Court of learned Magistrate on 6 th September, 2000 when the trial proceedings were commenced which came to be concluded only on 29 th August, 2005, after a long lapse of about six years.
43. Thus, there is patent illegality in the approach undertaken by the High Court in remanding the matter for a de novo trial mechanically on the ground of change of Magistrate, without proper appreciation of the material before it. Out of three cases before us, in SLP (Crl.) No. 5623/2012 there is a finding recorded by the High Court that the matter has been tried summarily. In other two cases i.e. SLP (Crl.) No. 734/2013 and SLP (Crl.) No. 3332/2012 there is finding on record that the cases have been heard by one Magistrate and judgment was passed by another Magistrate, they were remanded back to Trial
-11 Crl.A.No.2190/2018 Court for de novo trial even without inquiry whether they were tried summarily or regularly. It seems from the impugned orders that no thorough scrutiny was undertaken by the High Court concerned to ascertain whether cases have been actually tried summarily or as summons cases.
47. The de novo trial of entire matter which should be ordered in exceptional and rare cases only when such course of fresh trial becomes indispensable to avert failure of justice [See Mohd. Hussain @ Julfikar Vs. State (Govt. of NCT of Delhi) (2012) 9 SCC 408, State of M.P. Vs. Bhooraji & Ors. (2001) 7 SCC 679 and Ganesha v. Sharanappa & Anr. (2014) 1 SCC 87]. Hence, de novo trial is only for exceptional cases when the finding of acquittal is on a total misreading and perverse appreciation of evidence.
48. The High Court in the present cases remanded the matters for de novo trial on the basis of flawed application of Nitinbhai's case, in spite of the fact that these cases are pending for over a decade. It went unnoticed by the High Court that the appellants have raised the plea of mode of trial due to change of Magistrate for the first time before the High Court. The same has not been raised when the change of Magistrate took place in the Court below during the course of trial. This clearly shows that only for the purpose of protracting the litigation, the plea has been taken for the first time. Had it been their case that because of the procedure adopted by the Court substantial miscarriage has taken place, they would have raised this plea at a much early stage of the proceedings.
55. In the present cases on hand, without strong, cogent, unimpeachable evidence on record that cases were tried 'summarily' but not as regular trial, the Court below gravely erred in remanding them to the Trial Court for a de novo trial.
-12 Crl.A.No.2190/2018 Therefore, there is no force in the submission that the trial has vitiated. Hence, this point is answered in Negative.
12. POINT NO.2: Counsel for appellant has contended that PW.1 does not have any authorization or knowledge. He relied upon a ruling reported in LAWS (SC) 2013 936
- A.C.NARAYANAN -VS- STATE OF MAHARASHTRA. In order to appreciate the arguments, the evidence requires to be seen, Ex.P1 is the GPA executed by complainant
-Smt. N.R.Rekha in favour of Sri.N.V.Ramesh, who is none other than the husband of said Smt.N.R.Rekha.The said GPA authorises him to prosecute any action in any court to defend any case with other authorization clause No.10 authorises him to give evidence on behalf of the complainant. The said person is examined as PW.1. He has contended that the accused used to purchase materials and he is due of of Rs.6,05,222/- and hence issued cheque,which is at Ex.P10, which was bounced and dishonour Memo is at Ex.P11. According to him, Ex.P2 to
-13 Crl.A.No.2190/2018 Ex.P7 are Invoice/Cash bills for purchase of aluminum coils purchased by appellant herein and Ex.P8 is the bill details showing the consolidated outstanding bills.
13. In order to see whether this PW.1 is well acquainted with the transaction, his cross assumes importance, in the cross examination,at page No.3, he admits that "ಈ ಕಕಕಸಸ ವವವಹಹರಕಕಕ ಸಸಬಸಧಪಟಟಸತಕ ಎನಸ.ಆರಸ.ರಕಕಖಹ ಅವರಗಕ ಸಸಪಪರರ ಮಹಹತ ಇದಕ ಎಸದರಕ ಸರ. ಆಕಕ ನಹವಯಹಲಯಕಕಕ ಬಸದದ ಸಹಕಕ ನದಡಯಲದ ಅಭವಸತರವಲಲ ಎಸದರಕ ಬರಲ ಎಸದದ ನದಡಯದತಹತರಕ.". Further, with regard to Ex.P2 to Ex.P7 and Ex.P10 i.e., Invoice and cheque, he denies the suggestion that he does not have any idea, but further cross examination clarifies the same. He admits in the cross examination at page No.4 that : "ನ.ಪ.2-7 ರ ಪಪಕಕರ ಎಷಷಷ ಹಣ ನಮಮದದದ ಎಎದರದ ಸಕಕಕ ನದಮನಡ ಹದನಳಬದನಕಷ. ಮಷಎದಷವರದದಷ ನಕನಷ ನ.ಪ.12 ರ ಪಪಕಕರ ಆರದಮನಪಯಎದ ರಮ.7,57,527/- ರಮಪಕಯ ಬರಬದನಕದಎದಷ ಕದಮಟಷದದದನನದ ಎಎದರದ ಸರ." According to him, totally in the invoices Rs.7,74,270/- is due and the cheque is given for Rs. 6,05,222/-. It shows that, part payment is made. Further,
-14 Crl.A.No.2190/2018 he does not know, whether on 10.01.2013, Rs.1,69,866/- is credited to the account and like wise Rs.1,20,000/- and accused is only due of Rs.2,98,548/-. He even does not know, on 08.02.2013, totally Rs.4,66,340/- was due and he even does not know on 18.03.2013 in the account of Srinidhi Metals, Rs.1,67,792/- is credited. All these questions are answered that, he has to go through the account statement and to to tell and this clearly goes to show that PW.1 is not having any idea about transaction or present when the transactions took place nor accurately say about the outstanding due and the payments made.
14. In a ruling relied by the counsel for appellant - LAWS (SC) 2013 936 - A.C.NARAYANAN -VS- STATE OF MAHARASHTRA, Hon'ble three Judges Bench has held with regard to the power of GPA Holder as under and clarified the position :-
"33. While holding that there is no serious conflict between the decisions in "MMTC (supra) and Janki
-15 Crl.A.No.2190/2018 Vashdeo Bhojwani (supra)", the larger Bench clarified the position and answered the questions framed in the following manner:
"(i) Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent.
(ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.
(iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.
(iv) In the light of Section 145 of N.I Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to
-16 Crl.A.No.2190/2018 issue process on the complaint under Section 138 of the N.I. Act.
(v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person."
Therefore, in this case, on going through the averments of the complaint, there is no single averments found that power of attorney has witnessed the transaction as an agent of payee and he has got specific knowledge of the transactions. Hence, PW.1 could not have been proper witness to be examined on behalf of the complainant, as he does not know anything about this transaction. Hence, this point is answered in Affirmative.
15. POINT NO.3 & 4 :- Specific case of the complainant is that he is due a sum of Rs.6,05,222/- and was paid for that purpose cheque was issued. But on going through the evidence of PW.1, who in the cross examination does not
-17 Crl.A.No.2190/2018 know whether on 10.01.2013, Rs.1,69,866/- and Rs.1,20,000/- and on 18.03.2013 Rs.1,67,792/- towards Ex.P2 to Ex.P7 are correct or not. Even he does not know whether the accused is only due a sum of Rs.2,98,548/-. Ex.P8 produced by the complainant is not at all proved with specific invoices. Even if the entire total of invoices is taken, it comes to Rs.5,41,388/- and as per Ex.P8, the the difference is about Rs.63,834/- and the proper credits are not given. Hence, there is no materials to show that the debt was due to the extent of Rs.6,05,222/- and the notice issued demanding the payment at Ex.P12 is said to be dated 30.08.2018. But the same notice is received by the appellant is produced at Ex.D3, which is un-dated one. Ex.P4 is the sealed cover. There is no proper evidence with regard to the service of the notices. Ex.P19 to Ex.P23 are not relevant to the case. The account statement at Ex.P15 to Ex.P18 produced by the complainant are not at all proved due to incorrect evidence and the admission of PW.1 Hence, these points are answered in the Negative.
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16. POINT NO.5:- Unfortunately, the trial has not at all considered most vital part of the evidence in appreciating the evidence of PW.1, which simply at para 9 re-produced the documents, which are marked and from para 11, it is stated the evidence which is deposed by PW.1 and DW1 and cited the rulings relied by counsel for accused without properly discussing whether those rulings are made applicable to the facts or not, and later on by relying upon Rangappa -Vs- Mohan, trial court has come to the conclusion that, the accused has not rebutted the presumption and pas the impugned order.
17. There is no mention about the fact that, whether this PW.1 was proper person to depose or not, whether he was having knowledge of facts and transactions or not, whether debt as mentioned in the cheque is the actual debt or not. Even the pendency of O.S.3346/2016 with respect to Ex.P2 to Ex.P7 and Ex.P10 is not discussed. Hence, Judgment requires to be set aside. Hence this point
-19 Crl.A.No.2190/2018 is answered in Affirmative.
18. POINT No.6 :- Hence, for all the above discussions and answering the above points accordingly the following..
ORDER This appeal filed under Section 374(3) of Cr.P.C. by the appellants/accused by name- M.Armugam being aggrieved by the judgment and sentence passed by learned Judge, Court of Small Causes and XXVI ACMM, Bengaluru City in C.C.No. 25980 / 2015 dated 03.10.2017 is hereby allowed.
In consequences, Judgment and
sentence passed by the trial court in
C.C.No.25980/2015 Dt. 03.10.2018 by the Learned Judge, Court of Small Causes and XXVI ACMM, is hereby set aside.
Acting u/s/255(1) of Cr.P.C., the accused is acquitted, his bail bonds and surety bond sands cancelled. Trial court to refund the amount -20 Crl.A.No.2190/2018 deposited by the appellant, if any. Send back LCR with copy of Judgment.
[Dictated to the Judgment Writer, transcribed by her, transcription corrected and then pronounced by me in open court, dated this the 4th day of ARPIL, 2022.] (Krishnamurthy R. Padasalgi) LV Addl. City Civil & Sessions Judge, Bengaluru.
-21 Crl.A.No.2190/2018 Judgment passed and pronounced in the open Court. The operative portion reads thus.
ORDER This appeal filed under Section 374(3) of Cr.P.C. by the appellants/accused by name- M.Armugam being aggrieved by the judgment and sentence passed by learned Judge, Court of Small Causes and XXVI ACMM, Bengaluru City in C.C.No. 25980 /2015 dated 03.10.2017 is hereby allowed.
In consequences, Judgment and sentence passed by the trial court in C.C.No.25980/2015 Dt. 03.10.2018 by the Learned Judge, Court of Small Causes and XXVI ACMM, is hereby set aside.
Acting u/s/255(1) of Cr.P.C., the accused is acquitted, his bail bonds and surety bond sands cancelled.
Trial court to refund the amount deposited by the appellant, if any.
Send back LCR with copy of Judgment.
(Krishnamurthy R. Padasalgi), LV Addl. City Civil & Sessions Judge,
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