Bangalore District Court
Raju.B S/O Lakshmaiah vs M/S Hdfc Bank Limited on 9 December, 2021
KABC010041802019
IN THE COURT OF THE LXIII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-64) AT BENGALURU.
Dated this Thursday the 9th day of December 2021
P R E S E N T :- Sri. B.VENKATESHA B.Sc., LL.B.,
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
Crl.A.No.323/2019
APPELLANT : Raju.B S/o Lakshmaiah,
Aged about 48 years,
C/o Prabhavathi Srinivas,
No.989, TUDA Layout,
A.M.Palya, Sira Gate,
Tumkur - 572 103.
(By Sri. H.G.Sanjay Kumar, Adv.,)
-V/s-
RESPONDENT : M/s HDFC Bank Limited
A Company registered under the
Companies Act 1956 and having its
registered office at 'HDFC Bank
House', Lower Parel (West),
Mumbai - 400 013 and
Having Branch office at Golden Towers,
Old Airport Road, Kodihalli,
Bengaluru - 560 017.
A Company represented by its
authorized signatory
2
Crl.A.323/2019
Sri.Patti Manjunath S/o Patti
Shankarappa, Aged about 30 years
(By Sri. Mariyappa, 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 08-01-2019 passed in C.C.No.17920/2017 on the file of Court of IV Addl. Small Causes Judge (SCCH-6) and XXX ACMM, Bengaluru. The appellant is the accused and that 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 it is a public limited Company carrying on the business of financial services including personal loan schemes. The accused had approached the complainant-Bank for taking personal loan. The accused had executed loan agreement vide No.30331198 and had taken loan. The accused undertook to repay the said with interest in EMI's regularly. In order to repay EMI's of the said loan, the accused issued a cheque bearing No.840957 dated 20-04-2017 for Rs.34,119/- drawn on ING Vysya Bank Ltd in favour of the complainant.
3Crl.A.323/2019 The complainant-Bank has presented the said cheque for encashment through HDFC Bank, but the said cheque was dishonored on 21-04-2017 due to Account Freezed/ Blocked. Thereafter, the complainant-Bank got issued legal notice on 09-05-2017 to the accused demanding him to pay the amount covered under the cheque within 15 days from the date of receipt of the legal notice. The said notice was unserved to the accused. In spite of that, the accused has not paid the cheque amount. Therefore, it was alleged that the accused has committed the offense 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 was pleaded not guilty of the offense punishable under Section 138 of N.I.Act. Therefore, the authorized signatory of the complainant-Bank was examined as P.W.1 and that he got admitted 9 documents marked as Ex's.P.1 to Ex.P.9 and closed the evidence. The accused examined himself as DW.1 and closed his case.
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 08-01-2019, the trial Court has found that the accused is guilty of the offence punishable under Section 4 Crl.A.323/2019 138 of N.I.Act. Therefore, the Trial Court has convicted the accused by way of imposing fine of Rs.34,119/- and that in default of payment of fine, the Trial Court has directed the accused to undergo simple imprisonment for a period of one month. The said fine amount of Rs.34,119/- has been granted in favour of 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 learned Magistrate failed to appreciate the valid and unambiguous defence of the accused, the evidence and documents on record and passed the impugned order without any base. The learned Magistrate has failed to appreciate the facts of the case in applicability of the provisions of law and material contradictions in the complaint and in the evidence of PW.1 while passing the impugned order and conviction against the the accused. In the cross-examination of PW.1, he has clearly stated that cheque in dispute was presented towards the part payment of balance of Rs.75,000/-. The trial Court was failed to consider the said fact and has wrongly came to the conclusion that Ex.P.2 was issued by the accused to the complainant towards payment of EMI. The trial Court has failed to consider that in the complaint as well as affidavit evidence of PW.1, it is contended that the cheque had been issued by the accused for payment of monthly installments. But, the PW.1 has stated in his cross-examination that the 5 Crl.A.323/2019 cheque in dispute had been issued by the complainant towards the part payment of balance of Rs.75,000/-. These contradictory statements have not been considered by the trial Court. The trial Court has failed to consider the documentary proof of non-service of statutory notice which sent to insufficient address and that it was returned as unserved. 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.
6. After service of notice of this appeal, the complainant has put his appearance through his counsel. Trial Court record has been secured. Both advocates have filed their written arguments by way reiterating the pleadings of their clients.
7. Perused the complaint, impugned judgment and sentence order, evidence of PW.1, DW.1, contents of Ex's.P.1 to P.9 documents as well as the averments made in the memorandum of appeal.
8. The points that arise for my consideration are as under:
1. Whether the Trial Court has erred in properly appreciating the evidence placed before it, with reference to law & the facts and circumstances of this case?6
Crl.A.323/2019
2. Whether the impugned judgment and sentence order warrants interference by this Court?
3. What Order ?
9. My findings on the above points are as under:
Point No.1 :- As in the negative Point No.2 :- As in the negative Point No.3 :- As per the final order, for the following:
REASONS
10. Points No.1 & 2: These points are interlinked with each other. Therefore, these points are taken up together for joint consideration to avoid repetition of facts. The trial Court has concluded that the complainant has proved the alleged guilt of the accused beyond reasonable doubt. The accused has failed to prove his case by placing a rebuttal evidence. In this appeal the main contention of the accused is that statutory notice has not been served to the accused. His another contention that the trial Court has not considered the evidence of DW.1 and that the trial Court has wrongly accepted the evidence of PW.1. With the background of the said contention as well as the view of the trial Court, the evidence placed before the Court is re- appreciated to know whether the trial Court has committed any error in convicting the accused.
7Crl.A.323/2019
11. 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 averred in the complaint once again.
12. Ex.P.1 the Power of Attorney dated 04-07-2017 issued to PW.1 to proceed with this case for complainant. Ex.P.2 the cheque dated 20-04-2017 discloses that the accused, has issued the said cheque for Rs.34,119/- drawn on ING Vysya Bank, Tumkur Branch, Bengaluru, in favour of the complainant. Ex.P.3 the Memo dated 21-04-2017 of the HDFC Bank, Salco Centre, Richmond Road, Bengaluru discloses that, the ING Vysya Bank Ltd., has returned the Ex.P.2 cheque as unpaid to the complainant due to "Accounts Blocked". So, it is clear that, the complainant has presented the said cheque for collection within 6 months from 20-04-2017. Signature marked as Ex.P.2(a) is admittedly the signature of the accused. Issuance of the said cheque in favour of the complainant also is not disputed. The accused has contended that he has issued the said cheque towards security purpose. Therefore, it is clear that the trial Court has rightly raised the presumption as per Sec.139 of N.I.Act and that the said cheque was issued for discharge of legally enforceable debt. It is for the accused to rebut the presumption by way of placing a probable evidence as per case law of Hon'ble Apex Court reported in Rangappa v/s Mohan's case reported in 8 Crl.A.323/2019 2010(3) SCC 441. Ex.P.4 copy of the legal notice dated 09-05-2017 discloses that within 30 days from 21-04- 2017, the complainant got issued the legal notice to the accused by stating about dishonor of the said cheque due to "Account Blocked" 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's.P.5 & 6 postal receipts dated 11-05-2017 discloses that the legal notice marked at Ex.P.4 has been sent to the the accused through registered post to his two addresses. Ex's.P.7 & 8 unserved postal covers discloses that legal notice sent to the address of the accused returned as unserved. Ex.P.8 Notice sent to the address of the address of the accused at A.M.Palya, Tuda Layout, Shira Gate, Tumkur-103, through registered post was returned on 22- 05-2017 as unclaimed though intimation delivered on 15- 05-2017. Ex.P.7 returned as the address is insufficient. In the cross-examination, DW.1 has specifically admitted that he is residing in the address as mentioned in the Ex.P.4 Notice. So it is clear that it is the correct address of the accused. The accused has not examined the Postman to show that the said RP covers are not brought to his address for service. Therefore, as per Sec.27 of General Clauses Act and case law of the Apex Court in C.C.Alavi's case reported in 2007(6) SCC 555, legal notice presumed to be served to the accused on 17-05-2017. Therefore, 9 Crl.A.323/2019 contention of the accused that the said legal notice not served to him cannot be accepted. This complaint was presented on 15-06-2017. So, it is clear that the complainant has filed this complaint within the period of 30 days after expiry of 15 days from 17-05-2017. It is clear that the complainant has complied proviso clauses (a) to (c) of Sec.138 of N.I.Act. So it is clear that the trial court has not committed any error in registering the said complaint as criminal case against the accused for trial of the said offence. Therefore, as held in Indian Bank Association's case reported in 2014(5) SCC 590, "Technically the commission of offence stands completed and it is for the accused to show that no offence could have been committed by him for specific reasons and defences".
13. Ex.P.9 statement of loan account dated 19-06- 2018 of HDFC Bank in respect of the accused discloses that as on 10-04-2017, there was a balance of Rs.75,575/- towards the said loan account of the accused. During the course of cross-examination, the accused has admitted that during the year 2014 he has availed a loan from the complainant-Bank. But he has denied that he has issued the said cheque towards repayment of loan installments. Nothing is elicited in the cross-examination of PW.1 that the accused has issued Ex.P.2 cheque towards security purpose. Nothing is also elicited that the accused has repaid the entire personal loan amount that availed by the accused 10 Crl.A.323/2019 from the complainant-Bank. Nothing is elicited in the cross examination of PW.1 that the said cheque marked at Ex.P.2 was not issued to the complainant towards discharge of legally enforceable debt. Availment of the said loan is not disputed. The accused has not produced any document to show that he has paid the entire balance amount with interest. He has failed to show that he has issued the said cheque towards security only. So, it is clear that there exists legally enforceable debt of Rs.75,575/- as on the date of issuance of Ex.P.2 cheque. By placing a probable evidence, the accused has failed to rebut the presumption raised under Sec.118 and 139 of N.I.Act in favour of the complainant. Therefore, no grounds to discard or disbelieve the evidence of PW.1 and contents of Ex's.P.1 to 9 in support of case of the accused. No grounds to accept the evidence of DW.1. Therefore, it is clear that the trial court has not erred in appreciating the evidence placed before it with reference to Secs.118, 138 and 139 of N.I.Act. In fact, as per Sec.138 of NI Act, fine of two times of the cheque amount is to be imposed. But the trial Court has not done so. Therefore, imposition of fine is reasonable. The trial Court has not erred in convicting the accused. Hence, there were no grounds to interfere with the impugned judgment and sentence order of the trial Court. This appeal is not succeeds on merits and that therefore impugned judgment 11 Crl.A.323/2019 and sentence order is liable to be confirmed. Hence, I answer the aforesaid points No.1 & 2 as in the negative.
14. Point No.3: In view of the above discussion and the findings on points No.1 & 2, this Court proceed to pass the following:
ORDER Appeal filed by the appellant/accused is hereby dismissed.
The judgment and order of conviction passed against the accused on 08-01-2019 in C.C.No.17920/2017 on the file of Court of IV Addl. and XXX ACMM, Bengaluru, is hereby confirmed.
Send back trial Court record with copy of this Judgment.
(Typed by the Judgment Writer on my dictation, the transcript revised and then pronounced by me in open court on this Thursday the 9th day of December 2021).
(B.VENKATESHA) LXIII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU