Bangalore District Court
Sri.Venkateshmurthy vs Sri. Shivaramaiah on 7 July, 2020
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 7 th day of July, 2019
PRESENT
Smt. K.KATHYAYANI., B.Com, L.L.M .
LXVI Addl.City Civil & Sessions Judge,
Bengaluru
Crl.Appeal.No. 1414 of 2017
Appellant: Sri.Venkateshmurthy,
S/o late Hanimaiah,
Aged about 49 years,
R/at No.11, Old Township,
HAL Colony,
Vimanapura,
Bengaluru - 560017.
(By Sri.V.D.Raviraj, Adv.)
/Vs/
Respondent : Sri. Shivaramaiah,
S/o Late Narasappa,
Aged about 49 years,
R/at No.55, 3rd Cross,
Shettihalli Village, Jalahalli Post,
Bengaluru-560 015.
(By Sri.M.C.Jagadeesh,Adv.)
JUDGMENT
Appellant/accused has preferred this appeal against the respondent/complainant under Section 374(3) of Cr.P.C. being aggrieved by Judgment of conviction passed 2 Crl.A.No.1414/2017 in CC.No.24510/2015 dated 01.09.2017 by the learned XII ACMM, Bengaluru.
2. For the sake of convenience, the ranks of the parties are retained as they are before the learned Magistrate Court.
3. Brief facts of the case are that;
a) The complainant has moved the present complaint on the allegation that the accused had entered into a sale agreement with him and towards the sale consideration, he had issued the cheque bearing No.715639 dated 30.04.2015 for a sum of Rs.6,70,000/- drawn on Syndicate Bank, Vimanapura, Old Airport Road, Bengaluru.
b) When the said cheque was presented for encashment, it was returned with an endorsement that "stop payment". In spite of issuance of legal notice, the accused did not pay the cheque amount. Accordingly, the complaint is filed.
4. The trial Court record reveals that on receipt of the complaint, the learned Magistrate was pleased to record the sworn statement of complainant and on satisfaction, has taken cognizance and issued summons to the accused. 3
Crl.A.No.1414/2017
5. In response to the service of summons, the accused put his appearance through his counsel and was enlarged on bail.
6. The case was posted for the complainant's evidence. In support of his case, the complainant got himself examined as PW-1. Got exhibited 6 documents and closed his side.
7. The statement of accused under Section 313 of Cr.P.C. was recorded and the accused denied all incriminating evidence against him and got examined himself as DW-1 in support of his defence. Got exhibited 6 documents and closed his side.
8. The learned Magistrate after hearing the arguments of both sides on merits of the case, has passed the impugned judgment convicting the accused for the offence punishable under Section 138 of the NI Act and sentenced accordingly.
9. Being aggrieved by judgment of conviction, the accused/appellant has approached this Court with the following grounds;
4
Crl.A.No.1414/2017
a) The Court below has failed to appreciate the valid and unambiguous defence and the evidence as well as the documents on record and passed the impugned order without any base.
b) The Court below has failed to appreciate the facts of the case in applicability of the provisions of law and also material contradictions in the complaint and the evidence of the complainant while passing impugned order convicting him.
c) The Court below has failed to consider the fact that after purchase of the property by him, he came to know that several persons have made a claim over the property and there is a dispute prevailing among the complainant and others in a civil suit in OS.No.25657/2015 which clearly shows that the complainant is not prompt in his approach from the beginning.
d) The Court below has failed to consider the fact that as per the agreement at Ex.P-6 and Ex.D-2, he had issued the cheque bearing No.715638 and not the cheque in question i.e., cheque bearing No.715639. 5
Crl.A.No.1414/2017
e) The complainant with an intention to match the number of the cheque at Ex.P-1, tampered the agreement in so far as the number of the cheque is concerned and clearly admitted the tampering of the agreement in the cross examination.
f) In spite of the same, the Court below held that he issued the cheque in question to clear the debt and convicted him which is highly unsustainable and liable to be set aside.
g) He has clearly stated that after payment of the amount mentioned in the cheque issued under the agreement at Ex.D-2, the complainant returned the same and it was destroyed. In spite of the same, the Court below has reached a wrong and erroneous conclusion holding that he has failed to produce the destroyed cheque bearing No.715638.
h) The Court below lost sight to the fact that the complainant has to establish his case beyond all reasonable doubt and not on his defence and weakness.
i) The complainant completely failed to establish or give reasonable cause for tampering of the document at 6 Crl.A.No.1414/2017 Ex.P-6 on which the entire case following the complainant is based. Hence, the judgment of the trial court is liable to be set aside.
j) The Court below has failed to consider the fact that even after lodging an intimation letter dated 08.05.2015 with his banker M/s Syndicate Bank with a request to not to honour the misplaced bank signed cheque leaf bearing No.715639, the complainant has presented the said cheque to bank twice i.e., on 12.05.2015 and 07.07.2015 and the bank has rejected the cheque with an endorsement payment stopped by the account holder. The fact of presentation following the cheque earlier was admitted by the complainant in his cross examination.
k) The Court below has failed to consider the fact of suppression of material fact of presentation of cheque at Ex.P-1 on the previous occasion returned with the same endorsement of "Stop Payment", once the cheque returned with an endorsement of "Stop Payment", there is no cause of action for the complainant to present the same once again and to file complaint.
7
Crl.A.No.1414/2017
l) The Court below has failed to consider the documentary proof of non service of statutory notice which was sent to wrong address and returned unserved. The trial Court without verifying and comparing the address mentioned in the notice, complaint and other documents, passed the judgment which is not sustainable under law.
m) The Court below by taking the service of notice issued earlier by the complainant to him for dishonour of the cheque reached the conclusion that notice at Ex.P-3 was duly served on him.
n) The Court below has not at all taken into the crucial aspect of tampering the documents at Ex.P-6 on which the entire case of the complainant is based.
o) The Court below has failed to consider that the complainant has failed to prove the prima facie case against him.
p) The impugned judgment of conviction and sentence is not sustainable in law and liable to be set aside. Hence, prayed this court to set aside the judgment of conviction and sentence passed and acquit him in the interest of justice and equity.
8
Crl.A.No.1414/2017
10. Heard the learned counsel for Appellant/the accused. The respondent/complainant and his counsel were absent despite of giving sufficient time. Hence, arguments on his behalf on merits taken as not submitted.
a) In support of his oral arguments, the counsel for accused/appellant has relied on the decisions reported in ILR 2007 KAR 2706 and SCC 2004(13) 498.
b) I have carefully gone through the above noted decisions and perused the record.
11. On the basis of the grounds made out, following points are arise for my determination.
1. Whether the accused/appellant proves the grounds urged by him in support of this appeal?
2. Whether the impugned judgment requires interference by this court?
3. What Order?
12. My findings to the above points are:
1) Points Nos.1 & 2 : Affirmative.
2) Point No.3 : As per final order for the following reasons.9
Crl.A.No.1414/2017 REASONS
13. POINT No.1:- The appellant has attacked the impugned judgment mainly on three grounds i.e.,
a) Ex.P-1 is not the cheque issued towards the payment of the balance sale consideration.
b) There was no reason for the complainant to present the cheque for second time when on first presentation it was returned with an endorsement "stop payment" and thus, this complaint is hit by limitation.
c) No notice mandate under the NI Act to file the complaint under Section 138 of the NI Act was served on him.
14. It is the specific case of the accused that towards the payment of sale consideration i.e., Rs.6,70,000/- the cheque, he had issued was bearing No.715638 and not the cheque in dispute at Ex.P-1 i.e. the cheque bearing No.715639.
15. To prove his defence, he has mainly relied on the document Ex.P-6 i.e., the agreement dated 20.01.2015 wherein the last number of the cheque is altered as "9", whereas in the xerox copy given to him i.e., his copy at 10 Crl.A.No.1414/2017 Ex.D-2, clearly demonstrates the last number of cheque is "8".
16. The plain perusal of the document at Ex.D-2 clearly demonstrates the cheque number as "715638" whereas Ex.P-6 clearly shows that the cheque number is "715639" wherein the alternation of the last number i.e., "9" is apparent on the fact of it.
17. Moreover, it is in the cross examination of the complainant/PW-1 that in ExD-2, the cheque number appears to be 715638. At this stage, he has voluntarily deposed that in Ex.P-6, his Advocate amended/altered the cheque number as 715639 and produced before the Court
18. It is the explanation of the accused in support of the above first ground that after payment of the amount of Rs.6,70,000/- by cash, the complainant returned the cheque No.715638 and he had destroyed it. He did not issue the cheque No.715639 towards the sale consideration amount, but the complainant who had managed to take the said cheque i.e. cheque No.715639, with an intention to harass him, has presented the same/Ex.P-1 twice and has come up with this complaint.
11
Crl.A.No.1414/2017
19. The trial Court record i.e. the deposition of the complainant/PW-1 reveals that his above defence was suggested to the complainant and the complainant has denied the suggestions with regard to the payment of the sale consideration amount of Rs.6,70,000/- by cash and the alleged return of the cheque No.715638 by him.
20. It is also the defence of the accused that after coming to know about the lost of cheque No.715639, he gave "stop payment" instructions to his banker. To establish the said contention, he has relied on Ex.D-4, the true copy of the memo of instructions which demonstrates that the cheque number referred is No.715639 and the reason is "lost".
21. Some of the reasons assigned in the impugned judgment to disbelief the defence of the accused are;
a) At page No.19, in the middle, it is observed that the accused has not examined his banker as to, whether himself gave stop payment instructions to his banker in the printed form and it is filled by him. But, the plain perusal of Ex.D-4 shows that it bears the signature of instructor under the head "yours faithfully" which 12 Crl.A.No.1414/2017 signature prima facie tallies with the admitted signatures of the accused over his deposition. Hence, it appears that to prove the fact as to, who gave instructions, it was not necessary for the accused to get examined the concerned bank officer/official.
b) It is also observed in the impugned judgment at para No.19 at the later part that to substantiate that whether the alleged cheque i.e. No.715638 was presented by the complainant for encashment or not and whether it was honored or not, the accused has not produced his bank account statement. But, the record reveals that Ex.D- 5 is the original pass book. Thus, the findings of the trial Court that non examination of his banker and non production of his bank account statement by the accused is very much fatal to the alleged defence of accused is not correct.
c) It is also observed in the impugned judgment at para 20 that the xerox copy of the passbook produced by the accused at E.D-2 does not reveal the entry in respect of cheque No.715638.
13
Crl.A.No.1414/2017
i) As observed above, it is the defence of the accused that in the month of March-2015, he paid the amount in cash, took back the cheque for Rs.6,70,000/- i.e., cheque No.715638 and destroyed it. Ex.D-5, the original pass book shows that there is no entry in Ex.D-5 in respect of the cheque No.715638. It is not case of anybody that the cheque No.715638 was presented for encashment. Hence, there was no circumstance to find the entry in the passbook in respect of cheque No.715638.
ii) Thus, the above observation in the impugned judgment at para No.20 that the passbook does not show the entry with respect to the cheque No.715638 is a strange observation and the said fact will not defeat the defence of the accused.
d) It is also observed in the impugned judgment at page No.21 at the first para end (i.e. end of 16 th main para) that if the cheque No.715638 was returned to the accused as he has contended, why the accused has not produced the same before the Court. But, as noted above, it is the case of the accused that he destroyed it. Hence, this observation of the trial Court is also not correct. 14
Crl.A.No.1414/2017
e) Before the above observations, it is also observed in the impugned judgment that the accused did not lodge police compliant about his/accused's loosing the cheque and the alleged misuse of the same by the complainant which appears probable in the circumstances of the case.
f) It is also observed in the impugned judgment at para No.18 at page No.21, relying on the decision reported in AIR 1998 SC 1957 that the accused has to prove that he was having sufficient funds in his bank account at the time of presentation of the cheque.
i) But, in the present case on hand, it is defence of the accused that he had already paid the amount by cash and on return of the cheque by the complainant, it was destroyed and he had not issued the cheque at Ex.P-1 i.e. cheque No.715638 and he lost it and that is why, he gave stop payment instructions to his banker. Hence, the dictum laid down in the above decision is not applicable to the facts and circumstances of the case on hand.
g) It is observed in the impugned judgment at para No.19 at page Nos.22 and 23 that in his cross examination, the accused has admitted that after dishonor of 3 cheques 15 Crl.A.No.1414/2017 for the reason that "funds insufficient", he had issued the cheque for Rs.6,70,000/-, but in the intimation to his banker at Ex.D-4, he has stated that he lost the cheque. Hence, it can be presumed that the accused knowing fully that he is liable to pay the remaining balance sale consideration has issued the cheque and only to defeat the claim of the compliant, the accused gave the stop payment instruction to his banker without having sufficient funds in his bank account.
i) But, it is the clear case of the accused the 3 cheques issued earlier were dishonored for insufficient funds; later he issued the cheque for Rs.6,70,000/-. But, it is his specific case that it was cheque No.715638 and not Ex.P-1 i.e., cheque No.715639 and he gave stop payment instructions to his banker as per Ex.D-4 in respect of cheque No.715639 i.e. Ex.P-1 and not in respect of cheque No.715638 and it is his specific case that he has destroyed the cheque No.715638 on its return by the complainant on receipt of the amount of Rs.6,70,000/- in cash. So, it clearly appears that the trial Court is confused and the 16 Crl.A.No.1414/2017 above observations are not correct in the back ground of the specific case/defence of the accused.
22. Admittedly, there is presumption under Section 118 and 139 of NI Act in favour of the complaint in respect of Ex.P-1 that it was issued by the accused to the complainant towards the discharge of the legally recoverable debt/due. But, it is also settled proposition of law that it is rebuttable presumption.
23. In this case, Ex.P-6 is an admitted agreement executed between the parties with regard to the balance sale consideration and the payment of the same through the cheque mentioned therein. It is also an admitted fact and evident on record that Ex.D-2 is the xeorx copy of Ex.P-6 given to the accused as his copy. There is alteration of the last number of the cheque at Ex.P-6 which is apparent on the face of the document/Ex.P-6 and it is admitted by the complainant/PW-1 in his cross examination and moreover, at this stage, he has voluntarily deposed that his advocate altered the number and presented the same before the Court.
17
Crl.A.No.1414/2017
24. Such being the case, the onus shifts on the complainant to give necessary explanation with regard to the circumstances under which the said alteration was made and why it is not carried on in the copy of the accused at Ex.D-2. But, there is not a single word uttered by the complainant either in his notice, or in compliant, or in his chief evidence or at least even after his voluntary statement in his cross examination that his advocate altered the number and presented to the Court.
25. In such a circumstance, the burden is heavy on the complainant to let in the supportive and corroborative piece of evidence on record that it is the cheuqe at Ex.P-1 i.e. the cheque No.715639 only, was issued by the accused towards the payment of the balance sale consideration of Rs.6,70,000/- and not the cheuqe No.715638 as contended by the accused.
26. Of course, no doubt and it is evident on record that apart from his self serving statement/oral testimony, the accused did not let in any supportive and corroborative evidence with regard to the alleged payment of the balance sale consideration amount of Rs.6,70,000/- by cash and 18 Crl.A.No.1414/2017 on receipt of the same, the complainant returning the cheque No.715638 to him.
27. But, it is well settled proposition of law that it is the person who asserts a thing has to prove it and it is the party who comes before the court with specific plea has to establish his case on his own and not on the weakness of the other side and the opposite party can take all the available defence even contradictory in nature.
28. Of course, the present case being a complaint under Section 138 of NI Act, the presumptions under Section 118 and 139 are in favour of the complainant and thus, the initial burden to rebut the said presumption is on the accused. But, in the case on hand, as noted above, there is admitted alteration of the last number of the cheque and thus, the burden shifts on the complainant to give necessary explanations in that regard which lacks in this case. Hence, the accused is successful in establishing this ground.
29. The second ground is on limitation i.e. when on 1st presentation, the cheque was returned for "stop payment", there was not cause for the complainant to 19 Crl.A.No.1414/2017 represent the cheque after limitation to raise a cause of action to file the complaint.
30. In support of this defence, the counsel for accused has relied on the above noted decisions i.e., the decision reported in ILR 2007 KAR 2706 (Sri.H.Najundappa since deceased by his Legal Representative his daurghter and Another vs. H.Hanumantharayappa in Criminal Appeal No.9/2001 decided on 26.06.2006) wherein he has relied on the observations of the Hon'ble High Court of Karnataka to the effect that;
"5. In the instant case, it is substantially established by the accused that the cheque was dishonored on 03.06.1998 on its first presentation on the ground of "Account closed". Therefore, the conduct of the complainant in representing the cheque on 25.06.1998 is an unwarranted and unnecessary exercise in law. The limitiation should be computed from the date of dishonour on 03.06.1998. The legal notice issued by the complainant is beyond the period of 15 days as envisaged under Section 138 NI Act, and is not in accordance with law. The compliant is barred by limitation. Accordingly, the order of acquittal is confirmed. Appeal dismissed."
31. He has also relied on the decision reported in (2004) 13 Supreme Court Cases 498 (Krishna Exports and Others Versus Raju Das in Criminal Appeal No.290 of 20 Crl.A.No.1414/2017 1999, decided on 14.09.2004) wherein he has relied on the observations of the Hon'ble Apex Court to the effect that;
"A. Negotiable Instruments Act, 1881 - s.138 r/w S.142(b) - Dishonor of cheque - Maintainability of compliant - Bar of limitation - Two notices issued to accused demanding payment under the cheque - Limitation period of one month for filing compliant, whether to be reckoned with reference to first notice or second notice - Held, cause of action to file complaint on non-payment despite of issue of the notice arises but once
- Hence, where on failure of drawer of cheque to make payment within 15 days of receipt of the first notice the complaint was filed beyond the period of one month should be reckoned with reference to the expiry of the period of 15 days after the second notice was issued, not sustainable - However, in view of the fact that a civil suit for recovery of the amount due from the accused including the cheque amount had been filed by the complainant and that the instant compliant was being thrown out on a technical ground, accused directed to furnish a bank guarantee to the court concerned which would remain as security to the extent of the amount specified herein to satisfy the decree if any passed by the court in the pending suit."
32. The other side has not relied on any decisions over ruling the dictum laid down in the above decisions. For that matter, there is no address of arguments on merits on behalf of the complainant.
33. In the present case on hand, it is in the complaint that the cheque at Ex.P-1 was returned dishonored with the endorsement "stopped payment" as per the return memo dated 07.07.2015. To substantiate the same, he has 21 Crl.A.No.1414/2017 produced the return memo at Ex.P-2 which is in support of his case.
34. Per contra, it is in grounds of appeal of the accused that the he gave stop payment intimation letter on 08.05.2015 and the complainant has presented the cheque at Ex.P-1 on 12.05.2012 and again on 07.07.2015.
35. To establish his ground, he has relied on entries of the respective above dates in his bank account pass book at Ex.D-5 i.e., Ex.D-5(a) and D-5(b) respectively. The said entries are very much in support of the accsued with regard to the presentation of the cheque No.715639 i.e., Ex.P-1 on 12.05.2015 and on 07.07.015 and the dishonor of the same for the reasons "stop payment instructions".
36. The true copy of the stop payment instructions at Ex.D-4 demonstrates that it is dated 08.05.2015. So, Ex.D-4 and 5 are in support of the accused. The date of presentation of the cheuqe and its representation on 05.05.2025 and 07.07.2015 respectively demonstrate that in view of the dictum laid down in the above noted decisions on which the accused has relied on, the present 22 Crl.A.No.1414/2017 compliant is hit by limitation. Hence, the accused is successful in establishing this ground also.
37. The other ground is non service of mandatory notice to file the complaint for the offence under Section 138 of NI Act.
38. It is in the compliant that the complainant got issued the legal notice dated 30.07.2015 calling upon the accused to pay the amount within 15 days from the date of receipt of the notice which returned unserved with shara "left the address".
39. Ex.P-3 is the office copy of the legal notice dated 30.07.2015. Ex.P-4 is the postal receipt dated 30.07.2015. Ex.P-5 is the unserved postal cover and the endorsement therein is "left, redirected to sender".
40. There is no cross examination to the complainant on behalf of the accused with regard to service of notice. However, in the cross examination of the accused, the accused has deposed that intentionally the complainant has sent the notice to the wrong address, thus, he did not receive the same.
23
Crl.A.No.1414/2017
41. Even the accused has denied the suggestion that his address shown in the notice and in the complaint are one and the same, the trial Court record reveals that they are one and the same. The accused has also denied the suggestion that intentionally in his chief affidavit evidence, he has added "MS" to the No.11.
42. But, the record reveals that in the admitted agreement at Ex.P-6, its xerox copy at Ex.D-2, the admitted certified copy of the sale deed at Ex.D-1, the true copy of the stop payment instructions at Ex.D-4 and in the original bank account pass book at Ex.D-5, the number shown in the accused address is "MS.11" and in the notice at Ex.P-3 and in the complaint, the number shown is "11" only. Hence, it cannot said that the accused intentionally added "MS" in his chief affidavit evidence and the above fact also probabalizes the defence of the accused that intentionally, the complainant left out the number "MS".
43. Moreover, even for the sake of arguments, it is accepted that without any intention "MS" is left in the number in the address of the accused in the notice at Ex.P- 3, then also in view of the fact that in apartments and in 24 Crl.A.No.1414/2017 colonies, there would be same serial numbers in the door numbers with distinct series of which this Court can take judicial notice, it can be safely concluded that the service of notice at Ex.P-3 on the accused cannot be taken as proper service of notice. Thus, the accused is also successful in establishing this ground as well. Hence, this point is answered in affirmative.
44. POINT No.2:- In view of my finding to the point No.1, the impugned judgment needs to be intervened. Hence, this point is also answered in affirmative.
45. POINT No.3:- For the reasons discussed above, I proceed to pass following order.
ORDER The Criminal Appeal filed by the appellant under Sec.374(3) Cr.P.C. is hereby allowed.
Consequently, the Judgment of conviction and sentence passed by XII ACMM, Bengaluru in CC.No.24510/2015 dated 01.09.2017 is hereby set aside. 25
Crl.A.No.1414/2017 In the result, the appellant/accused is hereby acquitted for the offence punishable under Section 138 of NI Act and his bail and surety bonds if any shall stand canceled.
Send LCR along with the copy of this order forthwith to the trial court forthwith.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 7th day of July 2020).
(K. KATHYAYANI ), LXVI Addl.CC & SJ, Bengaluru 26 Crl.A.No.1414/2017 Counsel for both parties are absent.
The Order is pronounced in the open Court (vide separate Order).
ORDER The Criminal Appeal filed by the appellant under Sec.374(3) Cr.P.C. is hereby allowed.
Consequently, the Judgment of conviction and sentence passed by XII ACMM, Bengaluru in CC.No.24510/2015 dated 01.09.2017 is hereby set aside.
1
Crl.A.No.1414/2017 In the result, the appellant/accused is hereby acquitted for the offence punishable under Section 138 of NI Act and his bail and surety bonds if any shall stand canceled.
Send LCR along with the copy of this order forthwith to the trial court forthwith.
LXVI Addl.CC & SJ, Bengaluru.