Bangalore District Court
Sri.N.Lakshmanswamy vs S/O Late Narayanaswamy on 25 January, 2016
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.CHANDRASHEKHAR MARGOOR, B.Sc., LL.B.(Spl)
LXVII ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Dated this the 25th day of January, 2016
Crl. Appeal No.764/2014
APPELLANT/ Sri.N.Lakshmanswamy
ACCUSED : S/o Late Narayanaswamy
Aged about 62 years
R/at.No.64, I Main,
Marenahalli,
Bengaluru.
(By Sri.N.Suresha, Advocate)
.Vs.
RESPONDENT Smt.Sujatha K.G.
COMPLAINANT : W/o. K.R.Ramesh,
Aged - Major,
R/at.No.131/Bengaluru 4th Main,
Rajajinagar,
Bengaluru-560 010.
(By Sri.N.C.S., Advocate)
JUDGMENT
This criminal appeal is preferred by the appellant/accused being aggrieved by the conviction judgment passed by the Learned XIII Addl. C.M.M., Bengaluru in C.C.No.4933/2011, dated:28.06.2014.
2 Crl.Appeal No.764/20142. The appellant herein was the accused and respondent herein was the complainant before the trial court. For the sake of convenience, parties would be referred to by the ranks, they were assigned before the trial court.
3. Brief facts of the case of the complainant are as under;
The complainant and the accused came to know each other through one Smt.Ramadevi, who is an employee of BMTC and friend of the complainant and also became good friend of the accused. The accused has requested the complainant to lend the loan of Rs.2,00,000/- for his daughter's marriage and also for the purpose of constructing the house. At that time, Smt.Ramadevi was also present and recommended for lending the loan stating that, the accused is in financial crises and is prompt in returning the hand loan. Accordingly, the complainant has lent Rs.2,00,000/- by way of cash. The accused has promised to repay the said loan within 5 months. The complainant has requested the accused to repay the amount on several occasions. But, the accused had expressed his difficulty in making the payment. Finally, when the complainant had demanded for repayment on 15.08.2010, the accused has issued Cheque bearing No.247355 dated:17.08.2010 for Rs.2,00,000/- drawn on Vijaya Bank, Moodlupalya, Bengaluru.
When the complainant has presented the said Cheque through her banker on 17.08.2010 but, the said Cheque 3 Crl.Appeal No.764/2014 came to be dishonored for the reasons "Insufficient Funds"
vide Banker's Endorsement, dtd:18.08.2010. The complainant got the issued legal notice dtd:02.09.2010 through RPAD and UCP and called upon the accused to pay the Cheque amount within 15 days. The UCP was served on the accused. But, the accused has not claimed the notice sent through RPAD. The accused after receipt of notice had neither given reply nor paid the Cheque amount. As the accused has failed to pay the Cheque amount, the complainant has lodged the complaint against the accused under Section 200 of Cr.P.C. r/w. Section 138 of N.I.Act and the same is numbered as PCR.37608/2010 before the Learned XIII Addl.C.M.M., Bengaluru.
The learned XIII Addl. C.M.M., Bengaluru after taking cognizance and recorded the sworn statement of the complainant and registered the case as C.C.No.4933/2011 and issued summons to the accused. The accused appeared before the learned XIII Addl. C.M.M., Bengaluru and engaged his advocate and bail application filed by the accused was rejected. Thereafter, the plea was recorded and the accused pleaded not guilty and claims to be tried. Thereafter, the complainant was examined herself as P.W.1 and got marked documents at Ex.P.1 to Ex.P.11. After the closure of the evidence of the complainant, the statement of accused U/Sec.313 of Cr.P.C. was recorded. The accused has denied the incriminating materials against him. The case was posted for defense evidence. The accused came to be examined himself as D.W.1. After hearing both the 4 Crl.Appeal No.764/2014 sides, the learned Magistrate has convicted the accused for the offence punishable U/Sec.138 of the N.I.Act and sentenced to pay a fine of Rs.2,05,000/- in default, to undergo simple imprisonment for 6 months and also ordered that, out of the fine amount, a sum of Rs.2,00,000/- shall be paid to the complainant as compensation and the balance of Rs.5,000/- shall be forfeited to the State.
4. Being aggrieved by the judgment of the trial court, the appellant has preferred this appeal on the following grounds;
1. The order passed by the learned Magistrate is not a speaking order.
2. The Learned Magistrate has committed error in law in taking the cognizance of the offence and accepting the evidence of PW1 and based the conviction on it which is bad in law.
3. The learned Magistrate failed to held that, P.W.1 has failed to prove the enforceable debt or liability.
4. The learned Magistrate failed to provide sufficient opportunity to cross examine the P.W.1 and to lead defense evidence and to adduce argument. Hence, the judgment is one side.
5. The sentence passed by the Learned Magistrate is too harsh and severe and the impugned judgment is illegal, incorrect and improper and has resulted in miscarriage of justice.5 Crl.Appeal No.764/2014
6. The learned Magistrate has passed the judgment only on presumptions and assumptions.
7. The respondent herein utterly failed to prove the transaction i.e., date of giving loan and date appellant handing over the Cheque to the respondent , the appellant handing over the Cheque to the respondent, the appellant clearly elicited in the cross- examination, inspite of that the trial court convicted the appellant.
Hence, the appellant has prayed to allow the appeal by setting aside the impugned Judgment passed by the Learned XIII Addl. C.M.M., Bengaluru in C.C.No.4933/2011, dated:28.06.2014.
5. The respondent put her appearance through her counsel. The Lower Court Records were secured.
6. Both sides have not canvassed their arguments. Hence, their arguments are taken as heard. I have perused the materials available on record.
7. From the above facts, the points that arise for my consideration are as under:
1. Whether the appellant has made out grounds that the ingredients Section 138 of N.I.Act are not complied and hence, interference of this court warranted as the impugned order is capricious and arbitrary?
2. What Order?6 Crl.Appeal No.764/2014
8 My findings on the above points are as follows.
POINT No.1 - In the Affirmative,
POINT No.2 - As per final order,
for the following :
REASONS
9. POINT No.1: The complainant is not a working
woman, but she is the house wife, and friend of
Smt.Ramadevi, who is an employee of BMTC wherein the complaint's husband is also working. The accused is also employee of BMTC, who alleged to have acquainted with the complainant, through the said Smt.Ramadevi. The complainant has not alleged in the complaint as to when she has lent Rs.2,00,000/- to the accused. But, she has alleged that, the accused has issued the Ex.P.1 Cheque on 15.08.2010, for repayment of Rs.2,00,000/- alleged to have received by the accused. The complainant has improved her version first time in the notice Ex.P.3 that, the accused has requested her to lend Rs.2,00,000/- during 1st week of January 2010 for the purpose of constructing the house and also daughter's marriage. The complainant has not stated even in the said notice as to when she has lent Rs.2,00,000/- to the accused and also in the complainant's sworn statement on 02.02.2011, she has not disclosed when she has lent Rs.2,00,000/- to the accused. But, the complainant again lead her evidence by filing her affidavit filed in lieu of her examination-in-chief as P.W.1 on 05.11.2011, In the said evidence also, she has not 7 Crl.Appeal No.764/2014 disclosed when she has lent Rs.2,00,000/- to the accused.
But, she has stated first time during the cross-examination that, she has given loan amount to the accused during March 2010. The complainant has not stated either in the complaint or in the notice as to when the amount was lent to the accused. Their Lordship pleased to held in the decisions reported in; IV 2007 BC 211 (Santhosh Manikrao Gundale .Vs. Rameshwar Vamanrao Tak & another) and also in 2014 AIR SCW 2158 (John K.Abraham .Vs. Simon C. Abraham & another) for drawing the presumption under Section 118 r/w. Section 139 of N.I.Act - Complainant not sure as to who wrote the cheque nor aware as to when and where existing transaction took place for which the cheque was issued by the accused. The complainant did not mentioned the date of advance of loan in his complaint and the date of issuance of cheque also not mentioned - Advance of loan as alleged by the complainant not proved. The dictum laid down by their Lordship is aptly applicable to facts on hand.
10. The complainant further admitted in the cross- examination that, she has lent loan amount to the accused by way of cash. But, as per Sec.269 SS of I.T.Act, if any amount has to be lent more than Rs.20,000/-, that has to be paid by way of Cheque itself. The complainant has not complied the provisions of Sec.269 SS of I.T.Act, in view of the dictum laid down by Their Lordship in 8 Crl.Appeal No.764/2014 AIR 2008 SC 1325 (Krishna Janardhan Bhat .Vs. Dattatraya G. Hegde). xxxxxx
11. The complainant has no source of income to pay Rs.2,00,000/- to the accused. The complainant has not produced any iota of evidence to show that, she was having Rs.2,00,000/- to lent it to the accused. The complainant has clearly admitted that, she is a house wife and she is not having any source of income of her own. But, she has stated that, her husband is working as Mechanic at KSRTC he will save the amount. It is not the case of the complainant that, she has given Rs.2,00,000/-, which was saved by her husband. She has further stated that, either herself or her husband are not income tax assesses. If at all her husband has saved Rs.2,00,000/-, he should have filed the income tax return showing the savings of Rs.2,00,000/-. Therefore, the un-accounted money alleged to have given to the accused will not fall under Sec.138 of N.I.Act as held by Their Lordship in;
"AIR 2009 (NOC) 2327 (Sanjay Mishra .Vs. Ms.Kanishka Kapoor @ Nikki and another) that the failure to disclose the amount in income tax return or books of account of the complainant may be sufficient to rebut the presumption under Sec.139 of N.I.Act. The amount advanced by the complainant to the accused was unaccounted cash amount, it was not disclosed in Income Tax Returns, hence, the liability to repay unaccounted cash amount cannot be said to be legally enforceable liability within the meaning of explanation to Sec.138 of N.I.Act".9 Crl.Appeal No.764/2014
12. The complainant has admitted that, at the time of lending of Rs.2,00,000/-, her husband and Smt.Ramadevi were present. But, the complainant has not chosen to examine either her husband or said Smt.Ramadevi for corroborating her case that she has lent Rs 2,00,000/- to the accused. But, the XIII Addl. C.M.M., Bengaluru has observed in the impugned judgment that, the accused has not examined the said Smt.Ramadevi to prove his defense. Their Lordship of Apex Court pleased to held in; (2015) 8 Supreme Court Cases 378 (T.Vasanthakumar .Vs. Vijayakumari) "Debt, Financial and Monetary Laws -
Negotiable Instruments Act, 1881 - Suit schedule.138 and 139 - Dishonour of Cheque - Presumption under S.139 that holder of Cheque received it for discharge of debt or other liability - When arises - Burden on accused/defendant to rebut - Courts below convicted defendant for dishonour of Cheque of Rs.5 lakhs given as consideration of a loan given to him by complainant - High Court acquitted defendant on ground that complainant had not proved legally enforceable debt or liability against defendant - Held, High Court was misplaced in putting the burden of proof on complainant- As per S.139, burden of proof had shifted on to accused which she failed to discharge - Order passed by High Court set aside - Conviction restored"
10 Crl.Appeal No.764/2014Their Lordship of Apex Court pleased to held in;
AIR 2010 SUPREME COURT 1898 (Rangappa .Vs. Mohan) (B) Negotiable Instruments Act(26 of 1881), S. 138 of N.I.Act. - Existence of legally recoverable debt or liability - Is matter of presumption u/S.139.
Observations in Para 29-32, 34-35 in decision reported in (2008) 4 SCC 54, not correct.
Their Lordship pleased to held that, the initial burden lies on the complainant. But, the complainant has not proved the legally enforceable debt payable to the complainant by the accused. Though, there is a presumption under Sec.139 of N.I.Act about the issuance of Cheque. But, the accused has taken the specific plea/ defense that, he has borrowed loan from the said Smt.Ramadevi and issued 2 Cheques as security to the said Ramadevi. But, the said Smt.Ramadevi has got filed this case through the complainant by utilizing Ex.P.1 Cheque and also filed another 138 of N.I.Act. case against the accused by using another Cheque. The complainant has specifically alleged in the complaint itself that the accused was introduced by said Ramadevi and recommended to the complainant that the accused is prompt in repayment of loan. Therefore it can be inferred that there was money transaction between the accused and Ramadevi. The P.W.1 complainant has shown ignorance to the question posed by the advocate for the 11 Crl.Appeal No.764/2014 accused about the money transaction between the accused and Ramadevi. The Learned XIII Addl. C.M.M., Bengaluru has not appreciated the said defense set up by the accused. No doubt, the accused has not produced the complaint filed by the said Smt.Ramadevi. Still, the initial burden casted on the complainant to prove the legally enforceable debt as the version of the complainant is not above board. The findings of the lower court in convicting the accused for the offence punishable under Sec.138 is erroneous. Hence, it requires interference of this court.
13. The complainant has alleged in the complaint that, notice served to the accused through UCP and RPAD were served. The complainant further alleged that, the notice sent through the RPAD was not claimed by the accused and it is held as it is duly served on the accused but, the complainant has not alleged in the complaint that, the accused is avoiding the service of notice. Their Lordship pleased to held in; 2004(3) Crimes 505 Madras (S.S.Ummul Habiba, Proprietor, M/s. Alim Auto Supplies v/s. B.Rajendran) that, "Return of postal cover as intimated unclaimed by itself would not amounts to constructive notice when it is not averred in complaint that, accused was evading service".
12 Crl.Appeal No.764/201414. Though the accused P.W.1 has admitted in the cross-examination that, the address shown in the cause title and his residence are one and the same. Nodoubt there is presumption that the notice sent to the correct address, if it is not returned it is held that it is duly served on the addressee. Still the notice is not duly served on the accused as because the averment in the complaint that accused is evading the service of notice is essential in view of the dictum laid down by Their Lordship.
The accused has further stated in the cross- examination that, he has constructed the house during 2011 and got performed the marriage of his daughter during 2012. But, according to the complainant, she has lent Rs.2,00,000/-to the accused during March 2010 for the construction of the house and to perform the marriage of the accused daughter during 2010. Therefore the purpose for alleged availing loan from the complainant is believable. Hence, the complainant has failed to prove the case that, she had lent Rs.2,00,000/- to the accused. The complainant has no source of income to pay Rs.2,00,000/- to the accused as because she is not earning any income. Their Lordship pleased to held in the decision reported in; 2015 AIR SCW 64 (K.Subramani .Vs. K.Damodara Naidu) that;
"Complainant had no source of income to lend sum of Rs.14 lakhs to accused - He failed to prove that there is legally recoverable debt payable to the accused to him - Acquittal of accused was proper".13 Crl.Appeal No.764/2014
The complainant has failed to establish that, there is a legally enforceable debt payable to the complainant by the accused. Hence, I am of the considered view that, the accused has made out the grounds to interfere with the impugned Judgment and hence, the conviction Judgment passed by the lower court is erroneous one. Hence, I answered the point accordingly.
15. POINT No.2: In view of the findings on the Point No.1 as above, my finding on this point is as per following;
ORDER The Criminal Appeal filed by the appellant is allowed. Consequently, the conviction judgment passed by the Learned XIII Addl. C.M.M., Bengaluru in C.C.No.4933/2011, dated:28.06.2014 is set- aside.
Acting under Sec.255(1) of Cr.P.C., the accused is acquitted for the offence punishable under Sec.138 of N.I.Act. His bail bonds and surety bonds stand cancelled.
Send back the records to the lower court along with the copy of this judgment.
(Dictated to the Stenographer, transcribed by her, and after corrections pronounced by me in the Open Court on this the 25th day of January, 2016) (CHANDRASHEKHAR MARGOOR) LXVII Addl.City Civil and Sessions Judge, BENGALURU.
14 Crl.Appeal No.764/2014