Bangalore District Court
R.C.Devaraj vs Aged About 80 Years on 12 April, 2019
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 12th day of April, 2019
PRESENT:
Sri.Nanda Kumar.B, BAL, LLB.,
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
CRIMINAL APPEAL No.257/2018
APPELLANT/ R.C.Devaraj
ACCUSED : Aged about 80 years,
Proprietor,
Navka Marketing,
No.42, Radesh, 1st 'B' Cross,
5th Main Road (Sai Baba Temple
Road), Arehalli, AGS Layout,
Bengaluru - 560 061.
(By Sri.T.H.Narayan, Advocate)
- Versus -
RESPONDENT/ Rajendra Prasad S.J.
COMPLAINANT : S/o Janardhanaiah,
Aged about 48 years,
Proprietor of Pooja Engineers,
No.750/1, 9th Cross,
4th Main Road, M.C.Layout,
Vijayanagar, Bengaluru - 560 040.
(By Sri. H.T. Nataraj, Advocate)
JUDGMENT
The appellant/accused has preferred this appeal under Sec.374(3) Cr.P.C., challenging the judgment passed 2 Crl.Apl.257/2018 by the learned XXV Addl. Chief Metropolitan Magistrate, Bangalore City, in C.C.5081/2014 dated 20-01-2018, whereby the appellant has been convicted for the offence punishable under Sec.138 of the Negotiable Instruments Act and sentenced to pay fine of Rs.8,77,079/-.
2. The appellant was the accused and respondent was the complainant before the trial court. For the sake of convenience, the appellant and the respondent are assigned the same rank in this appeal as assigned to them by the trial court.
3. The brief facts leading for disposal of this appeal are as under:
It is the case of the complainant that, he is a Proprietor of Pooja Engineers Company, dealing with sale of various products such as PVC wires, Indo Asian make 'C' curve MCBs etc. The accused had purchased the said articles on many occasions under various invoices and used to make payments in installments. That on one such occasion, the accused had purchased the products for a 3 Crl.Apl.257/2018 sum of Rs.8,75,000/- and had failed to pay the said amount in installment on its due date. Hence, on the demand by the complainant, the accused issued a cheque for the outstanding balance for a sum of Rs.8,75,079/-
bearing No.841761 dated 26-07-2013, drawn on ICICI Bank, Chamrajpet branch, Bengaluru. The complainant presented the said cheque for realization of the cheque amount, but the cheque was returned unpaid for want of sufficient funds with an endorsement dated 30/07/2013. Thereafter, the complainant got issued legal notice to the accused dated 19/08/2013 to the business address and the residential address of the accused. The notice sent to the business address was returned with a shara as "no such person" and the notice sent to the residential address of the accused by RPAD has been served. But the accused failed to cause any reply to the said notice. Hence, cause arose for the complainant to file the complaint under Sec.200 of Cr.P.C. for the offence punishable under Sec.138 of the Negotiable Instruments Act.
4 Crl.Apl.257/2018
4. On presentation of the complaint under Sec.200 of Cr.P.C. by the complainant for the offence punishable under Sec.138 of N.I.Act, against the accused, the trial court after having recorded the sworn statement of the complainant has taken cognizance for said offence and has issued summons to the accused by registering a criminal case in C.C.5081/2014. Subsequently on receipt of summons the accused appeared before the trial court through his counsel and has been enlarged on bail.
5. Thereafter, the trial court has recorded the plea of the accused for the offence punishable under Sec.138 of Negotiable Instruments Act. However the accused has pleaded not guilty and claimed to be tried. Hence the complainant in order to prove his case, has got examined himself as PW.1 and got marked 09 documents as Ex.P1 to Ex.P9 and closed his side. Thereafter, statement under Sec.313 Cr.P.C. of the accused has been recorded. The accused has disputed the version of PW.1. The accused 5 Crl.Apl.257/2018 has not led any evidence in his defense and also has not produced any documents.
6. The learned trial Judge on appreciation of the evidence on record, has convicted the accused for the offence punishable under Sec.138 of Negotiable Instruments Act and sentenced him to pay a fine of Rs.8,77,079/- and out of the said fine amount, has ordered to pay a sum of Rs.8,75,079/- to the complainant and to remit a sum of Rs.2,000/- as fine to the State Exchequer.
7. The accused being aggrieved by the above said judgment of conviction and sentence, has come up in appeal, challenging the judgment of the trial court on the following among other grounds;
It is contended that the learned trial Judge has passed the judgment impugned without properly appreciating the evidence on record. It is further contended that the learned trial Judge has failed to take note of the fact that, the mandatory notice has not been served on the accused and as such the complaint is not maintainable. It 6 Crl.Apl.257/2018 is further contended that, the complainant had received the cheques in question as security and not towards any legally enforceable debt and the said aspect has not been considered by the learned trial Judge. The further contention is that, the learned trial judge has not afforded sufficient opportunity to the accused to lead evidence on his behalf. Hence, on these grounds has sought for setting aside the judgment of the trial court impugned herein and to acquit him for the offence punishable under Sec.138 of the Negotiable Instruments Act.
8. This appeal was presented before the Hon'ble Principal City Civil & Sessions Judge, Bengaluru, it was registered as Criminal Appeal No.257/2018 and made-over to this court for disposal. After the receipt of the records this court has issued notice to the respondent and the respondent appeared through a counsel. Thereafter the LCR was secured.
7 Crl.Apl.257/2018
9. Heard both counsel on the main appeal.
10. The points that arise for my determination are as under:
1. Whether the trial court has committed any error in appreciating the oral and documentary evidence lead by the parties?
2. Whether the interference of this court is necessary in the impugned judgment of the trial court?
3. What Order?
11. On appreciation of the lower court records i.e., the oral and documentary evidence adduced by the parties and also on appreciation of the reasons assigned by the trial court in its judgment, my findings to the above said points are as follows:
Point No.1 & 2 : In the NEGATIVE;
Point No.3 : As per final order
For the following;
8 Crl.Apl.257/2018
REASONS
12. POINT Nos.1 AND 2: Point Nos.1 and 2 are taken up together, as they could be disposed of by a common reasoning and also to avoid repetition of facts.
12(a). The first contention urged by the learned counsel for the appellant is that the appellant is that, the mandatory notice has not been served on the accused and as such, the complaint is not maintainable. On the other hand, the learned counsel for the complainant has contended that, the notice addressed to the residential address of the accused by RPAD has been served in person.
12(b). In view of the aforesaid rival contention, it is pertinent to take note of Ex.P.9 postal acknowledgement produced by the complainant before the trial court. From the perusal of the said postal acknowledgement, it is to be seen that, the address mentioned in the said postal address is the very same address mentioned in the cause title of the complaint filed under Section 200 of Cr.P.C. by the complainant in respect of the address of the accused.
9 Crl.Apl.257/2018 Further, from the perusal of the address of the accused in the cause title of the present memorandum of appeal it is to be seen that, the very same address has been mentioned. Moreover, the accused has not disputed the said address as his residential address. Though, the accused contends that, the signature in the postal acknowledgement is not his signature, but he has not adduced any satisfactory evidence to substantiate the said contention. Therefore, a presumption has to be drawn that, the mandatory notice has been served on the accused as per Ex.P.9 postal acknowledgement. Therefore, the contention of the learned counsel for the accused that, the mandatory notice was not served upon the accused cannot be accepted.
12(c). The other contention urged by the learned counsel for the accused is that, the cheque in question was issued as a security towards previous transaction with the complainant and not in connection with the goods supplied under Ex.P.3 to 7 tax invoices. However, in this regard, it is pertinent to take note of the suggestions put to 10 Crl.Apl.257/2018 PW. 1/complainant in his cross-examination by the learned counsel for the accused. In the cross-examination of PW. 1 dated 10/03/2017, at page No.7, it has been suggested to PW. 1 by the counsel for the accused that, the accused had stopped business transaction prior to January 2011 itself. Further, in the very same page, the complainant/PW. 1 has stated that, the cheque was handed over one week prior to the date mentioned on it. (Ex.P1 cheque is dated 26/07/2013). This statement of the complainant has not been specifically denied by the accused. Therefore, it is to be seen that, if at all, the accused had stopped the transaction with the complainant prior to 2011 itself, then what was the necessity for the accused to have given cheque in question in the year 2013.
12(d). That apart, if, as per the contention of the accused he had stopped the business transaction with the complainant in the year 2011 itself, then why he did not make any efforts to taken back the cheque which according to him (the accused ) was given as security, in the year 11 Crl.Apl.257/2018 2011 itself. There is nothing on record to show that, the accused had made any efforts to take back the cheque from the complainant. Therefore, a presumption has to be drawn that, the cheque in question has been issued in connection with the transaction mentioned in Ex.P3 to P.7 invoices. As such, the contention of the learned counsel for the accused that, the cheque in question was issued as security and not towards a legally enforceable debt, cannot be accepted.
12(e). The other contention urged by the learned counsel for the accused is that, the learned trial Judge has not afforded sufficient opportunity to the accused to lead his evidence. However, in this regard, from the perusal of the order sheet proceedings of the trial court in connection with present case, it is to be seen that, three opportunities have been given from 09/06/2017 to 14/07/2017 to the accused to adduce his evidence, but the accused has not utilized the said opportunity. Prior to that, it is to be seen that, from the perusal of the said order sheet proceedings 12 Crl.Apl.257/2018 that sufficient time has been granted for cross-examination of PW. 1 and that, PW. 1 has been cross-examined fully after nearly 19 to 20 adjournments. Therefore, in my opinion, the accused cannot have any grievance with regard to non grant of opportunity. It is the accused who has not utilized the opportunities given by the trial court. Hence, the above contention of the learned counsel for the accused that, the learned trial Judge has not afforded sufficient opportunity to the accused to lead his evidence cannot be accepted.
12(f). The cheque in question having been dishonored has not been disputed by the accused. The accused has also not disputed the fact that, the cheque in question (Ex.P.1) pertains to his bank account. Hence, the case of the complainant needs to be accepted. As such, the findings of the learned trial Judge in the impugned judgment, in my opinion, is in consonance with the facts of the case. Therefore, I do not see any valid grounds to 13 Crl.Apl.257/2018 interfere with the findings of the learned trial Judge. Accordingly, I hold point Nos.1 and 2 in the NEGATIVE.
13. POINT No.3: In view of my findings on Point Nos.1 and 2, I proceed to pass the following:
ORDER The Criminal Appeal filed by the appellant/accused under Sec.374(3) of Cr.P.C. is hereby dismissed.
In the circumstances, no order as to costs. Send back the LCR to the trial court with a copy of this judgment.
(Dictated to the Stenographer directly on computer, corrected, signed and then pronounced by me in the open court on this the 12th day of April, 2019).
(NANDA KUMAR.B) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.