Bangalore District Court
Sri Kodandaramu S/O Late R. Ranganna vs Sri M.Prabhakar S/O Late K.M.Reddy on 10 March, 2022
1
Crl.Apl.2070/2019
KABC010303662019
IN THE COURT OF THE LXIII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-64) AT BENGALURU.
Dated this Thursday the 10th day of March 2022
P R E S E N T :- Sri. B.VENKATESHA B.Sc., LL.B.,
XXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
Crl.A.No.2070/2019
APPELLANT : Sri Kodandaramu S/o Late R. Ranganna,
aged 54 years, No. 127, 1st stage, 2nd
phase, West of Chord Road,
Manjunathanagar, Bengaluru-10.
(By Sri. M.Y.Lokesha, Advocate)
-V/s-
RESPONDENT : Sri M.Prabhakar S/o Late K.M.Reddy,
aged 49 years, No. 29, 1st Cross, 2nd
stage, Okalipuram, Near Sapna Clinic,
Bengaluru-43.
(By Sri. Harsha, Adv., )
*****
JUDGMENT
The appellant has filed this appeal U/Sec.374(3) of Cr.P.C against the respondent challenging the judgment and sentence order dated 12-03-2019 passed in C.C.No. 26802/2015 on the file of 4th ASCH & XXX ACMM, Bengaluru. The appellant is the accused and that 2 Crl.A.2070/2019 respondent is the complainant before the trial court. Therefore, for the sake of convenience, the parties to this appeal are herein afterwards referred with their ranks before the trial Court.
2. The brief facts as set out in Memorandum of appeal are that the complainant has filed complaint under Section 200 Cr.P.C alleging that 24.05.2014, the accused had availed a hand loan of Rs.5,00,000/- from him. He has agreed to repay the said amount with interest at 12% per annum. Towards repayment of of Rs.5,00,000/-, on 12-05- 2015 the accused had issued a cheque bearing No.619286 for Rs.5,00,000/- drawn on City Co-Operative Bank Ltd, Mahalaxmipura Branch, Bengaluru City, in favour of the complainant. When complainant has presented the said cheque for encashment through Federal Bank Ltd, Rajajinagar Branch, Bengaluru, the said cheque returned on 02-06-2015 as un-paid due to "Funds insufficient". The complainant got issued a legal notice on 29-06-2015 to the accused demanding payment of the said cheque amount. The said notice was served to the accused through his wife. The accused has not paid the said cheque amount. Therefore, it was alleged that the accused has committed the offence punishable under Section 138 of N.I.Act.
3. The Trial Court has registered the said complaint as a criminal case and has issued summons to the accused. In pursuance of service of summons, the accused has appeared before the Trial Court. He was enlarged on bail. He 3 Crl.A.2070/2019 was pleaded not guilty of the offence punishable under Section 138 of N.I.Act. Therefore, complainant was examined as PW.1 and that he has got admitted 09 documents marked as Ex's.P.1 to Ex.P.09 and has closed the evidence. The accused has denied the incriminating evidence that appeared against him before this Court. Accused has not chosen to adduce any defence oral or documentary evidence.
4. After hearing the arguments of both sides, considering the facts and circumstances of the case as well as the evidence placed, by means of impugned judgment dated 14-10-2019, the trial Court has found that the accused is guilty of the offence punishable under Section 138 of N.I.Act. Therefore, the trial Court has convicted the accused by way of imposing fine of Rs.3,50,000/- and that in default of payment of fine, the Trial Court has directed the accused to undergo simple imprisonment for a period of six months. Out of the said fine amount, a sum of Rs.3,50,,000/- ordered to be paid to the complainant as compensation.
5. Being aggrieved by the impugned judgment and sentence order of the Trial Court, the accused has preferred this appeal contending that the impugned judgment and conviction order is illegal, biased, and against the principles of natural justice. Filing of joint memo is not within the knowledge of the accused. It came to his knowledge only when he enquired on September 2019. The trial Court has 4 Crl.A.2070/2019 gravely erred in failing to see the back ground and conduct of the parties and nature of transaction. Among other grounds, the accused has sought to set aside the impugned judgment and sentence order of the Trial Court. He has sought for his acquittal of the offence punishable under Section 138 of N.I.Act. Along with this appeal, the accused has filed IA under section 5 of Limitation Act & has sought for condonation of delay of 165 days in filing this appeal.
6. After service of notice of this appeal, the complainant has put his appearance through his counsel. Trial Court record has been secured. The complainant has orally opposed the IA filed under section 5 of Limitation Act. Heard the arguments of the learned Counsels appeared for both parties. In the arguments both sides have specifically reiterated the facts as averred in the complaint and in the memorandum of appeal once again.
7. Perused the contents of Memorandum of Appeal,IA, Affidavit, impugned judgment & sentence order and the evidence placed before the Trial Court.
8. The points that arise for my consideration are as under:
1. Whether there is sufficient cause to condone delay?
2. Whether the Trial Court has erred in properly appreciating the evidence placed before it, with reference to law, facts and circumstances of this case?5
Crl.A.2070/2019
3. Whether the impugned judgment and sentence order warrants interference by this Court?
4. What Order ?
9. My findings on the above points are as under:
Points No.1 :- As in the affirmative.
Point No.2 :- As in the negative,
Point No.3 :- As in the negative
Point No.4 :- As per the final order,
for the following:
REASONS
11. Point No.1 :- Impugned judgment and sentence order was passed on 12-03-2019. But, the accused has preferred this appeal on 27-09-2019. Reason quoted is that he does not about passing of the said judgment. He came to know only when the police came to him with FLW. The said delay is not intentional and for the bona fide reasons stated above. The complainant has not opposed this I.A. by way of filing objection. She has not seriously disputed the reasons as mentioned for delay in filing this appeal. It appears that the reasons as mentioned are genuine reasons. For delayed approachment, some cost needs to be imposed. Hence, I am of the opinion that there is sufficient cause to condone the delay in filing this appeal. Therefore, I answered the Point No.1 as in the Affirmative.
12. Points No.2 & 3:- These points are interlinked with each other. Therefore, these points are taken up 6 Crl.A.2070/2019 together for joint consideration to avoid repetition of facts. To its conclusion that the accused is guilty of the offence punishable U/Sec.138 of N.I.Act, the Trial Court has opined that the complainant has proved the alleged guilt of the accused beyond reasonable doubt. The accused has fails to rebut the presumption U/Sec.139 of N.I.Act. Therefore, the Trial Court has opined that the complainant has established his case. Main ground of the accused in this appeal is that the trial Court has not applied its mind in appreciating the evidence.
13. In view of afore said contentions of accused, it is necessary to sum up Secs.118, 138 and 139 of N.I.Act and several other leading case laws for reference. Sec.118 of the N.I.Act provides that, Until the contrary is proved, the fallowing presumption shall be made (a) of consideration- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration,
(b) as to the date- that every negotiable instrument bearing a date was made or drawn on such date,
(c) as to time of acceptance- that every bill of exchange was accepted within a reasonable time after its date and before its maturity
(d) as time of transfer-that every transfer of a negotiable instrument was made before its maturity
(e) as to order of endorsements-that the endorsements appearing upon negotiable instrument were made in the order in which they appear thereon 7 Crl.A.2070/2019
(f) as to stamps- that a lost promissory note,bill of exchange or cheque was duly stamped
(g) that holder is a holder in due course- that the holder of a negotiable instrument is a holder in due course.
Provided that, where the instrument has been contained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
Sec.138 of the N.I. Act provides that "Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque or with both."
Proviso (a) of Section 138 provides that the cheque has been presented to the bank within a period of six months from 8 Crl.A.2070/2019 the date on which it is drawn or within the period of its validity whichever is earlier.
Proviso (b) of Section 138 provides that the payee or the holder in due in course of the cheque,as the case may be,makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of cheque, within 30 days of the receipt of information by him from the bank regarding return of the cheque as unpaid.
Proviso (c) of Section 138 provides that the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque, within 15 days of the receipt of the said notice.
Explanation: For the purpose of this section debt or other liability means a legally enforceable debts or other liability. Section 142 of N.I.Act provides that not- withstanding anything contend in the Code of Criminal Procedure 1973.
(a) no court shall take cognizance of any offence punishable U/s.138 of N.I.Act except upon a complaint in writing made by the payee or, the case may be the holder due course of the cheque.
(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of proviso to section 138 of N.I.Act. (Provided that the cognizance of a complaint may be taken by the court after prescribed period, if the complainant satisfy the court that 9 Crl.A.2070/2019 he had sufficient cause for not making a complaint within such period. As per Sec.138 of N.I.Act it is clear that the cheque must be issued towards discharge of legally enforceable debt or other liability.
Sec.139 of the N.I.Act provides that, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in under section 138 for the discharge, in whole or in part, of any debt or other liability.
14. In a case law reported in 2010(11) SCC 441 Rangappa V/s Sri Mohan, at para No.26 the three judges bench of Hon'ble Apex Court has held that "the presumption mandated under Sec.139 includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, herein, there can be no doubt that there is an initial presumption which favours the respondent/ complainant. At para No.27 the Hon'ble Apex Court has further held that "It must be remembered that the offence made punishable by Sec.138 can be better described as a regulatory offence since a bouncing of the cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transaction. In such scenario, the test 10 Crl.A.2070/2019 proportionality should guide the construction and interpretation of reverse onus clauses and the accused cannot be accepted to discharge an unduly high standard of proof". At para No.28 the Hon'ble Apex Court has further held that "It is a settled position that when an accused has to rebut the presumption under Sec.139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore if the accused is able to raise a probable defence which creates doubts about a existence of the legally enforceable debt or liability, the prosecution can fail. The accused can rely on the material submitted by the complainant in order to raise such a defence and it is conceivable and in some cases the accused may not need to adduce evidence of his / her own". With the background of aforesaid case laws, impugned judgment and sentence order is scrutinized with reference to evidence placed before the trial Court. In a case law reported in 2014(5) SCC 590, Indian Bank Association and Others V/s Union of India & Others, the Hon'ble Apex at para 18 has held that "if provisos (a),(b)and (c) to Section 138 of the N.I.Act are shown to have been complied with, technically the commission of the offence stands completed, and it is for the accused to show that no offence could have been committed by him for the specific reasons and defenses".
15. In the oral evidence of PW.1, that recorded at the time of his chief-examination, he has deposed his side of evidence by way of reiterating almost all the facts as 11 Crl.A.2070/2019 averred in the complaint & memorandum of appeal once again. Ex.P.1 the cheque dated 12-05-2015 discloses that the accused has issued the said cheque to the complainant for Rs.5,00,000/- drawn on The Bangalore City Co- Operative Bank, Ltd Mahalaxmipuram Branch, Bengaluru in favour of the complainant. Ex.P.1(a) is the signature of the accused. Ex.P2 Return memo of Federal Bank Ltd., dated 13-05-2017 discloses that, the drawer's Bank, has returned the Ex.P.1 cheque to the complainant stating the said cheque was not honored due to "Funds insufficient".Ex.P3 Return memo of Federal Bank Ltd., dated 22-05-2017 discloses that, the drawer's Bank, has returned the Ex.P.1 cheque to the complainant stating the said cheque was not honored due to "Funds insufficient"
Ex.P4 Return memo of Federal Bank Ltd., dated 02-06- 2015 discloses that, the drawer's Bank, has returned the Ex.P.3 cheque to the complainant stating the said cheque was not honored due to "Funds insufficient" So, it is clear that, the complainant has presented the said cheque for collection within 6 months from 12-05-2015. Ex.P.5 copy of the legal notice dated 29-06-2015 discloses that within 30 days from 02-06-2015, the complainant got issued the legal notice to the accused by stating about dishonor of the said cheque due to "Funds insufficient"
and has requested him to make payment of the amount covered under the said cheque within 15 days from the date of receipt of the said notice. Ex.P.6 postal receipt 12 Crl.A.2070/2019 dated 29-06-2015 discloses that the legal notice marked at Ex.P.5 has been sent to the accused through registered post to his two addresses. Ex.P.7 Postal Acknowledgment discloses that the legal notice has been served to the accused through Yogeshwari.K on 01.07.2015. According to the complainant, Yogeshwari.K is the wife of the accused. The accused has not disputed the address or service of the said notice to him. Ex.P.7 Bank account extract of Usha. S. Ex P.9 is the pass book of Usha S.
16. The accused has not disputed that the address shown in the legal notice marked at Ex.P.3 and in the RP cover marked at Ex.P.5 are not his addresses. He also has not placed any evidence to show that he is not residing in the said address and that the postman has not brought the said legal notice to him for its service. Address as mentioned in the cause title to the address as mentioned in the legal notice and RP cover are one and the same. Therefore, it is clear that the legal notice has been duly served on the accused in view of Sec.27 of General Clauses Act and as per case law of C.C.Alavi's case reported in (2007)6 SCC 555
17. This complaint was presented on 22-08-2017. So, it is clear that the complainant has filed this complaint within the period of 30 days after expiry of 15 days from 1- 07-2015. The accused has not paid the amount within 15 days from the date of service of legal notice. So, it is clear that the complainant has proved that he has complied the 13 Crl.A.2070/2019 terms of proviso clauses a to c of section 138 of NI Act. Hence, as per case law reported in 2014(5) SCC 590, Indian Bank Association and Others V/s Union of India & Others, the Hon'ble Apex at para 18 has held that "if provisos (a),(b)and (c) to Section 138 of the N.I.Act are shown to have been complied with, technically the commission of the offence stands completed, and it is for the accused to show that no offence could have been committed by him for the specific reasons and defenses".
18.The accused has contended that he has issued the said cheque to the complainant towards security only. He has not disputed the that Ex P.1(a) ssis not his signature. Hence, the trial Court has correctly raised the initial presumption under section 139 that the Ex P.1 Cheque was issued for discharge of debt or other liability. It is for the accused to rebut it by placing a probable evidence.
19. Nothing is elicited in the cross-examination of PW.1 for accused. He also has not stated anything about this case at the time when his statement under section 313 was recorded. He has stated before this Court that he has defence evidence in support of her case. If the said cheque was given as security, the accused can say what is that security. Why he is not examined before the Court also is not explained. The accused is kept silent. Therefore, no grounds to accept the said contentions of the accused.
20. The evidence placed before the court clearly goes to show that the complainant has paid Rs.5,00,000/-
14Crl.A.2070/2019 to the accused on loan as pleaded. The evidence placed before the Court discloses that the accused has issued the said cheque to the complainant towards discharge of loan of Rs.5,00,000/-. Joint memo dated 06.03.2019 filed by both parties before the trial Court disclose that the accused has paid Rs 3,50,000/- to the complainant. Evidence placed before the Court clearly disclosed that the complainant has proved his case as alleged against the accused beyond reasonable doubt. Therefore, this Court is of the opinion that there were no grounds to accept the contentions raised by the accused in this appeal. As per case law reported in 2014 SC 2528, Indian Bank V/s Union of India, simple say of accused that he is innocent cannot be accepted without a reliable evidence. Therefore, it is clear that the accused has failed to rebut the presumption raised under Sec.118 and 139 of N.I.Act by placing a probable evidence. Imposition of fine amount is reasonable because as per Sec.138, because double the amount of cheque can be awarded as fine. Therefore, it cannot be accepted that the trial court has erred in appreciating the evidence with reference to law and facts of this case. Therefore, no grounds to interfere with the impugned judgment and sentence order passed by the trial Court. Therefore, this Court has answer the aforesaid points No.2 & 3 as in the Negative.
15Crl.A.2070/2019
21. POINT NO.3: In view of the above discussion and the findings on points No.1 to 3, this Court proceed to pass the following:
ORDER IA filed under section 5 of Limitation Act is hereby allowed on payment of Cost Of Rs 500/- Delay of 165 days in filing this appeal is hereby condoned.
Appeal filed by the appellant/accused is U/Sec.374(3) of Cr.P.C is hereby dismissed.
The judgment and order of conviction passed against the accused dated 12-03-2019 passed in C.C.No.22802/2015 on the file of Court of IV ASCJ & 30th ACMM, Bengaluru, is hereby confirmed.
[s Send back trial Court record with copy of this Judgment.
(Typed by the typist/steno on my dictation, the transcript revised and then pronounced by me in open court on this Thursday the 10th day of March 2022) (B.VENKATESHA) LXIII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU