Bangalore District Court
Against Same vs Who Will Be Herein After on 23 July, 2016
IN THE COURT OF LXIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE (CCH 70)
Present: Sri T.P.Ramalinge Gowda,
LXIX Additional City Civil and
Sessions Judge,
Bengaluru.
Dated this the 23rd day of July, 2016
Crl.Appeal No.1131 & 1132/2015
Common Appellant: Smt. Mubeena Begum,
w/o Sadiq Pasha,
aged about 46 years
r/at No.23,
Chokkanahalli cross,
Heggadenagara main road,
Jakkur post,
Yelahanka Hobli,
Bangalore 560 0642.
[By Sri B.V.Manjunatha Gowda and
Associates]
V/s
Common Respondent: Sri Mukund T.K.
s/o late T.D.Kantha Rao,
aged about 50 years
r/at No. 309,
1st floor, 1st Block,
BEL Layout, 13th cross,
Vidhyaranyapura,
Bangalore 560 097.
[By Sri.Kuberappa N, Advocate]
2 Crl.A.No. 1131 &
1132/2015
: COMMON JUDGMENT :
Since these two appeals have been filed by the same
appellant against same respondent, these two appeals
have been clubbed together and common judgment has
been passed in order to avoid repetition of work.
2. Appellant/accused, who will be herein after
referred as an 'accused' has assailed the legality and
correctness of her conviction to the offence punishable
U/Sec.138 of N.I.Act and her sentence for payment of fine
of Rs. 90,000/- in default shall undergo simple
imprisonment for a period of one six months in
C.C.No.6468/2014 and her sentence for payment of fine of
Rs. 40,000/- in default shall undergo simple imprisonment
for a period of 3 months in CC No.6467/2014 on the file of
XVIII Additional Chief Metropolitan Magistrate, Bengaluru
City.
3. Essential material facts lead to this appeal
succinctly is as follow:-
3 Crl.A.No. 1131 &
1132/2015
Respondent/complainant, who will be herein after
referred as 'complainant' launched criminal prosecution
against accused for the offence punishable U/Sec.138 of
N.I.Act through his private complaint maintained U/Sec.200
of Code of Criminal Procedure with support of allegation
that Ex.P.1 cheques for Rs. 65,000/ drawn at Andhra
Bank, Thanisandra Branch, Bengaluru and one more
cheque for Rs. 32,000/- drawn at HDFC Bank issued by
accused to discharge her debt returned dishonoured on
the ground of 'insufficient funds` on 13.1.2011 and
7.12.2013 respectively as per Ex.P.2 memo in both cases.
Accordingly the complainant got issued legal notice as per
Ex.P. 3 in both cases calling upon the accused to pay the
amount and despite of service of notice the accused failed
to pay the cheque amount and thereby accused committed
the alleged offence. Hon'ble court below after taking
cognizance on the complaint of complainant and
examination of available materials, including complaint and
sworn statement of complainant and other materials
registered a case in C.C.No.6468/2014 and 6467/2014
4 Crl.A.No. 1131 &
1132/2015
respectively against accused for the offence punishable
U/Sec.138 of N.I.Act. Accused appeared before court
below in both cases through her counsel. She was
supplied with copies of papers and its supporting materials.
Substance of accusation was read over and explained to
the accused. Accused pleaded not guilty and claimed to
be tried. Complainant to bring home above guilt of
accused, himself examined as PW.1 and got marked 7
documents exhibited as Ex.P1 to P.7 in CC No. 6468/2014
and 6 documents exhibited as Ex.P.1 to P.6 in CC No.
6467/2014. On the other hand accused had not chosen to
step into the witness box in both cases. Accused was
examined U/Sec.313 of Code of Criminal Procedure. She
denied all incriminating evidence appeared against her.
Hon'ble court below after hearing arguments of learned
counsels and examination of available materials, found
accused guilty for the above offence with aforementioned
finding on the points addressed for decision making in the
impugned judgment and believed the existence of above
version of complainant through impugned judgment and
5 Crl.A.No. 1131 &
1132/2015
accordingly sentenced accused in the above manner
through impugned order of sentence.
4. Feeling aggrieved and dissatisfied with the
above nature of verdict of court below, accused has
preferred these instant appeals. Accused in her appeal
memo in both cases, while reiterating above noted material
events taken place prior to complaint and subsequent to
complaint, specifically contended that court below has not
properly appreciated available materials and erred in
accepting and acting upon the evidence of PW.1 which is
being inadmissible and she has not been given opportunity
to cross examine the complainant and to establish the
defence by examining herself. The learned Magistrate
without giving sufficient opportunity has passed exparte
order in favour of the complainant. The learned Magistrate
considered the only legal presumption in favour of the
complainant that Ex.P.1 cheque has been issued n
discharge of the legal liability. With these amongst other
6 Crl.A.No. 1131 &
1132/2015
grounds the appellant prays to set aside the impugned
judgment and acquit her as per law.
5. Lower court record and appearance of
complainant has been secured.
6. Heard the arguments.
7. Perused the papers.
8. In the light of challenge of impugned judgment
by accused and above noted materials, following points fall
for decision making of this court:-
1. Whether the complainant has proved
that accused committed an offence
punishable under section 138 of NI
Act?
2. Whether impugned judgment and
order of sentence of court below in
convicting accused for the offence
U/Sec.138 of N.I.Act and sentencing
him in the aforementioned manner is
proper and correct?
3. What order?
7 Crl.A.No. 1131 &
1132/2015
9. This court upon re-appreciation of available
materials in the file with reference to prevailing law of
land, give finding to the above points as follow:-
POINT NO.1 & 2 - Affirmative;
POINT NO.3 - As per final order, on
the following;
:REASONS:
10. POINT NO.1 and 2: As these points are
interconnected to each other, they are taken up together
for discussion, so as to avoid repetition of facts.
I have perused the complaint and all the
documentary evidence on record, it is the specific case of
the complainant that the complainant and the accused are
known to each other for the last several years. The
accused is carrying on business of supplying of Jelly and
concrete blocks by name RM Block Factory and she had
borrowed loan of Rs. 2 lakhs from the complainant through
cheque No. 611381 dated 22.5.2013 drawn on The
Bangalore City Co-operative Bank and she agreed to
repay the same with interest on monthly installments
8 Crl.A.No. 1131 &
1132/2015
commencing from 22.6.2013. Complainant further alleged
that accused issued two cheques towards part payment,
one for Rs.65,000/- dated 25.11.2013 drawn on Andhra
Bank, Arkavathi Layout, Narayanapura cross road Branch
and another for Rs. 32,000/- dated 22.10.2013 drawn on
HDFC Bank, Bangalore. But on presentation of those
cheques they were dishonored for want of funds in the
account of the accused. Thereafter complainant issued a
legal notice and same is served upon the accused. On
failure of payment of amount as per the demands made in
the said legal notice the complainant has filed the private
complaint u/sec. 200 of Cr.P.C. against the accused for the
offence u/sec. 138 of N.I Act. On securing the appearance
of accused the trial court has recorded the substance of
accusation after compliance of section 207 of Cr.P.C. In
order to bring home the charge leveled the accused the
complainant himself examined as PW.1 in both cases and
got marked 6 documents in CC No.6467/2014 and 7
documents in CCNo.6468/2014. On the other hand the
accused had not stepped into the witness box.
9 Crl.A.No. 1131 &
1132/2015
11. The counsel for the respondent argued that the
judgment and order of sentence of the trial court is in
accordance with law and do not call for interference from
this court and hence prays for confirming the same.
12. On careful analysis of the pleadings in the
complaint coupled with the oral and documentary evidence
adduced by the complainant, it is clear that the accused
had not come forward to deny the allegations made
against her by way of cross examining PW1 and by way of
adducing her evidence. Eventhough the accused has
choosen to lead defence evidence during her statement
u/sec. 313 of Cr.P.C. at later stage when the matter is
posted for defence evidence, she did not come forward to
lead evidence. The ordersheets of the trial court shows
that even after providing sufficient opportunity the accused
has not availed the opportunities for cross examination of
the complainant in order to disprove the case of the
complainant and also to lead evidence. After filing the
appeals operations of impugned judgments and orders of
sentence were suspended subject to condition that the
10 Crl.A.No. 1131 &
1132/2015
Appellant should deposit 20% of the fine amount within 30
days. But the appellant failed to comply the stay order by
depositing the fine amount. On perusal of the order sheet it
discloses that after obtaining the stay order the appellant
remained absent and not turned up for arguing the matter.
The appellant just filed the appeals and prays to set aside
the judgment of the lower court in both cases. The
conduct of the appellant in both cases is not proper. Even
after granting sufficient opportunity the appellant remained
absent and not argued the matter.
13. The provisions u/sec. 139 of NI Act provides for
presumptions to be drawn in favour of the drawee of the
cheque. If the drawer of the cheque issued cheque in
favour of the drawee of the cheque the presumption has to
be drawn that the drawer of the cheque has issued the
said cheque to the drawee to clear the debt. The
presumption has to be drawn in favour of the drawee. In
such case the drawer of the cheque has to rebut the said
presumption that the said cheque was not issued towards
any legally enforceable debt. In this case the accused
11 Crl.A.No. 1131 &
1132/2015
failed to rebut the presumption raised in favour of the
complainant with cogent and satisfactory evidence. She
has not produced any material to show that she had issued
the impugned cheques for some other purpose or not
towards the legally enforceable liability. Hence the
presumption raised by the trial court in favour of the
complainant is proper and correct. Hon'ble court below
appropriately and correctly with proper prospective
appreciated all above noted materials, which placed by
complainant. Though accused in her appeal memos
generally and casually contended that court below failed to
appreciate the materials in proper manner, but she has not
pointed out how court below committed error in
appreciating any of the available materials. All the
contentions of accused in her appeal memos do not hold
water. Hon'ble court below with application of sound
judicial approach and mind, properly believed the
existence of version of complainant. There are no grounds
whatsoever to discard the finding and element decision of
court below through impugned judgment. This court does
12 Crl.A.No. 1131 &
1132/2015
not find any amount of irregularity and error either in
appreciating evidence or in convicting accused for the
above offence. Therefore, impugned judgment and order
of sentence of court below is perfectly correct and in
accordance with law and same does not call for
interference of this court. Accordingly, these points are
answered in the affirmative.
14. POINT NO.3: In the light of finding on above
point, appeal of accused to be dismissed. Accordingly this
court proceeds to pass the following:
:ORDER :
Appeals of accused are dismissed. Impugned judgment and order of sentence of court below in CC No. 6467/2014 and 6468/2014 dated 5.8.2015 are hereby confirmed.
Send back LCRs along with copy of this judgment to court below to take further action in the matter.
Keep the original judgment in Crl.A.No.1131/2015 and the copy in Crl.A.No. 1132/2015.
(Typed to my online dictation by the Judgment Writer, corrected, signed and pronounced by me in open court on this the 23rd day of July, 2016) (T.P.Ramalinge Gowda) LXIX Addl.C.C. & Sessions Judge, Bengaluru.
13 Crl.A.No. 1131 &1132/2015 Judgment pronounced in open court, vide separate order.
:ORDER :
Appeals of accused are dismissed. Impugned judgment and order of sentence of court below in CC No. 6467/2014 and 6468/2014 dated 5.8.2015 are hereby confirmed.
Send back LCR along with copy of this judgment to court below to take further action in the matter.
Keep the original judgment in Crl.A.No.1131/2015 and the copy in Crl.A.No. 1132/2015.
(T.P.Ramalinge Gowda) LXIX Addl.C.C. & Sessions Judge, Bengaluru.