Bangalore District Court
Sri.Thimmaiah. H.E @ Ananda vs Sri. B.Manjunath on 5 August, 2016
IN THE COURT OF THE LXII ADDL.CITY CIVIL
& SESSIONS JUDGE, BENGALURU
Dated this the 05th day of August, 2016
PRESENT
************
Sri Parameshwara Prasanna,
B.A,L.L.B.,
LXII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
Crl. Appeal No.1497/2015
APPELLANT: Sri.Thimmaiah. H.E @ Ananda,
S/o Erappa,
Aged about 32 years,
R/o.No.33, Kuvempu Road,
Rajeswari Layout,
Yelachenahalli,
Opp-Rajeshwari Manor,
Bangalore-062.
(By Sri.D.Harish Kumar)
-Vs-
RESPONDENT: Sri. B.Manjunath,
S/o.Late. Boraiah,
Aged about 36 years,
R/o.No.211, Sri Rama Road,
Thyagarajanagara,
Bangalore-560 028.
(By Sri. D.N.G, Advocate)
JUDGMENT
This is an appeal under Section 374 of Cr.P.C filed by the accused against the Judgment dated 18.11.2015 passed in C.C.No.6771/2012 by the learned XXII Addl.Chief Metropolitan 2 Crl. Appeal.No.1497/2015 Magistrate, Bengaluru wherein the said trial Court convicted the accused/appellant for an offence punishable under Section 138 of N.I.Act and sentenced him to pay a fine of Rs.3,00,000/- and in default of payment of fine to undergo simple imprisonment for one year and out of fine amount a sum of Rs.2,95,000/- has been ordered to be paid to the respondent/complainant as compensation U/s.357 of Cr.P.C and the balance amount of Rs.5,000/- has been ordered to be adjusted to the State Exchequer.
2. For the sake of convenience, the parties are referred to as per their litigative status before the trial court. The appellant is the accused and the respondent is the complainant as per their original ranks before trial Court.
3. The respondent filed the complaint against the appellant before the trial Court for the offence punishable under Section 138 of N.I.Act. The brief fact of the case as per the compliant is that, during the 1st week of September 2010 accused took the Innova car bearing No. KA05-MH-5774 of the complainant on the pretext of need of the same for taking his relative to the hospital for delivery. Thereafter the accused did not return the said car and subsequently the complainant came to know that said car 3 Crl. Appeal.No.1497/2015 has been pledged by the accused to one Vijay, the friend of accused, by forging the signature of the complainant and the accused fraudulently received Rs. 4,50,000/- from Vijay. Immediately the complainant filed a complaint before the concerned police. Since the police have not taken any action, the complainant filed a private complaint before the VIII ACMM, Bangalore in PCR No. 4663/2011 for the offences punishable U/sec. 406, 415, 416, 420, 453, 465, 467, 468 and 471 of IPC. The court referred the case to Thyagarajanagar Police for investigation and Thyagarajanagar police registered the case against the accused in Cr.No. 26/2011. On 05.06.2011 on intervention of elders and well- wishers of both parties, both parties have come across the settlement amicably on the terms and conditions that the accused shall pay Rs.1,50,000/- to the complainant towards the balance sale consideration after full and final settlement and towards discharge of the said liability the accused issued a cheque bearing No. 655537, dated 05.09.2011 for a sum of Rs.1,50,000/- drawn on the State Bank of India, ISRO Layout Branch, in favor the complainant. The complainant presented the said cheque for encashment, but the same has been returned dishonored with bank endorsement " insufficient funds" dated 08.09.2011. 4 Crl. Appeal.No.1497/2015 Thereafter the complainant got issued a legal notice dated 26.09.2011 both by RPAD and speed post, calling upon the accused to pay cheque amount, within a period of 15 days from the date of receipt of notice. The notice sent to the accused by RPAD and speed post was duly served on 28.09.2011, the accused neither paid the cheque amount nor sent any reply. Hence according to the complainant, he was constrained to file the complaint against the accused for the offence punishable under section 138 of NI Act.
Based on the said complaint cognizance was taken, sworn statement of the complainant was recorded and case was registered against the accused in C.C.No.6771/2012 for the offence punishable under Section 138 of N.I.Act.
Upon service of summons, accused appeared through her counsel and plea of the accused was recorded and he pleaded not guilty.
4. During the course of trial, complainant examined himself as Pw.1 and got marked Exs.P1 to P.9. The accused when examined U/s.313 Cr.P.C denied all the incriminating circumstances appearing in evidence against him. Accused in order to prove his 5 Crl. Appeal.No.1497/2015 defence, examined himself as Dw.1, but no documents were produced or marked on behalf of the accused.
5. After hearing both the parties, the lower court convicted the accused for an offence punishable under Section 138 of N.I.Act and sentenced him to pay a fine of Rs.3,00,000/- and in default of payment of fine to undergo simple imprisonment for one year.
6. Being aggrieved by the said order of the trial Court, the accused/appellant is before this Court by challenging the Judgment on the following grounds:
i) The judgment of conviction and sentence passed by the learned Magistrate is totally perverse, illegal, unlawful and bad in law and hence liable to be set-aside.
ii) The impugned judgment of conviction and order of sentence passed by the trial court is contrary to the facts, materials and evidence placed on record.
iii) The trial court placed much reliance on the unreliable testimony of PW.1
iv) The trial court failed to appreciate that the issuance of cheque, is not at all admitted by the accused.
v) The trial court failed to appreciate the material in the cross examination portion of PW.1.
vi) The trial court failed to see that no demand notice was served on the appellant.6 Crl. Appeal.No.1497/2015
vii) The trial court ought to have believed the probable defence of the accused that the blank signed cheque taken at Thyagarajnagar Police station, from him, has been misused by the complainant for filing the complaint.
Inter-alia on these grounds, the appellant sought for allowing of the appeal.
7. The Lower Court records secured. Heard learned counsel for the appellant and Learned Counsel for the respondent. I have carefully perused entire lower court records.
8. Under the facts and circumstances of the case, the following points arise for my consideration:
1. Whether the Judgment of conviction and order of sentence passed in C.C.No.6771/2012 dated 18.11.2015 passed by the learned XXII Addl.Chief Metropolitan Magistrate, Bengaluru is erroneous and illegal?
2. Whether there is an necessity for interfering with the impugned judgment of the trial court?
3. What Order?
9. My findings to the above points are as under:-
POINT No.1:- In the Negative POINT No.2:- In the Negative POINT No.3:- As per final order, for the following:-7 Crl. Appeal.No.1497/2015
REASONS
10. Point No.1 & 2 - As these point no.1 and 2 are inter- related, they are taken together for discussion to avoid repetition.
The case of the complainant in brief is that during the 1st week of September 2010 accused took the Innova car bearing No. KA05-MH-5774 of the complainant on the pretext of need of the same for taking his relative to the hospital for delivery. Thereafter the accused did not return the said car and subsequently the complainant came to know that said car has been pledged to one Vijay, the friend of accused by forging the signature of the complainant and the accused fraudulently received Rs. 4,50,000/- from Vijay. Immediately the complainant filed a complaint since the police not taken any action, the complainant filed a private complaint before the VIII ACMM, Bangalore in PCR No. 4663/2011 for the offences punishable U/sec. 406, 415, 416, 420, 453, 465, 467, 468 and 471 of IPC. The court referred the case to Thyagarajanagar Police for investigation and Thyagarajanagar police registered the case against the accused in Cr.No. 26/2011. On 05.06.2011 on intervention of elders and well-wishers of both parties, both parties have come across the settlement amicably on the terms and conditions that the accused shall pay Rs.1,50,000/- 8 Crl. Appeal.No.1497/2015 to the complainant towards the balance sale consideration after full and final settlement and towards discharge of the said liability the accused issued a cheque bearing No. 655537, dated 05.09.2011 for a sum of Rs.1,50,000/- drawn on the State Bank of India, ISRO Layout Branch, in favor the complainant. The complainant presented the said cheque for encashment, but the same has been returned dishonored with bank endorsement - " insufficient funds"
on 08.09.2011. Thereafter the complainant got issued a legal notice dated 26.09.2011 both by RPAD and speed post, calling upon the accused to pay cheque amount along with interest within a period of 15 days from the date of receipt of notice. The notice sent to the accused by RPAD and speed post was duly served on 28.09.2011, the accused neither paid the cheque amount nor sent any reply.
Hence according to the complainant was constrained to file the complaint against the accused for the offence punishable under section 138 of NI Act.
11. The complainant in his affidavit filed towards examination in chief reiterated the averments made in the complaint. On behalf of the complaint the following documents were marked before trial court;
9 Crl. Appeal.No.1497/2015
1) Ex.P.1:-true copy of the FIR registered by Thyagarajnagar police against accused,
2) Ex.P.2: true copy of the PCR filed against accused,
3) Ex.P. 3 and 4 : copy of the complaint submitted by accused to Thyagarajnagar police station on 29.01.2011 and 05.06.2011,
4) Ex.P.5 is the charge sheet submitted by Thyagarajnagar police against the accused,
5) Ex.P.6 is the cheque alleged to have been issued by the accused,
6) Ex.P.6(a) signature of accused,
7) Ex.P.7: endorsement issued by the banker,
8).Ex.P.8- Legal notice, Ex.P.8(a and b)- RPAD receipts, Ex.P.8(c)-postal acknowledgment pertaining to notice,
9). Ex.P.9- complaint.
12. The accused in order to prove his defence got examined himself as D.W.1. The accused denied the entire loan transaction and issuance of cheque in discharge of the liability. According to the accused he purchased the Innova car bearing No. KA05-MH-5774 in the name of the complainant as there was 10 Crl. Appeal.No.1497/2015 documentation difficulty to purchase the vehicle in his name. The accused in his chief examination itself stated that he knows the complainant, and that the Inspector of Thyagarajanagar police had obtained blank signed cheque from him in matter of the Innova car, Ex.P.1 is one of the cheque which was taken at the police station. That he was summoned to Thyagarajanagar police station on the complaint filed by the complainant. He also admitted that said car was registered in the name of the complainant, and he admitted in his chief examination that he received Ex.P.8-legal notice and he has not replied for the same. In the chief examination accused claimed that said innova car bearing Registration No.KA-05-MH-5774 belonged to him, but in the cross examination stated that he has no document to show that the said car belongs to him and he has no documents to show that he was paying installments in respect of the said car. He has admitted that complainant lodged a complaint against him for cheating U/Sec. 420 of IPC and also admitted that police summoned him for enquiry. The accused has admitted that the cheque belongs to him. He has also admitted his signature in the cheque. Now this Court being Appellate Court has to see whether the defence of the accused is probable or not. It is pertinent to note that according to the accused the cheque taken by 11 Crl. Appeal.No.1497/2015 coercion in the police station, has been misused by the complainant for filing the complaint. It is pertinent to note that the accused has not taken any action against the police Inspector of Thyagarajnagar police station, who alleged to have taken two blank signed cheque from the accused. If really police Inspector has illegally taken the cheque from the accused, the accused would have filed complaint before Higher authority or before Court. No action has been taken by the accused, even he has not issued reply to the Ex.P.8-legal notice and he has not filed police complaint against the complainant regarding the alleged misuse of cheque. Admittedly he has not given instruction to the bank for stopping payment of the cheque on the ground of alleged misuse of the cheque. No prudent man will keep quiet if his cheque is misused, without there being liability. The facts and circumstances of the case clearly shows that the defence of the accused is not probable.
13. The oral evidence of PW.1 coupled with Ex.P.1 to 9 clearly establishes that the accused has deceived the complainant by taking the vehicle, without returning back the same and in discharge of legally enforceable liability Ex.P.6-cheque was issued by the accused.
12 Crl. Appeal.No.1497/2015
14. In this case accused admitted the signature in the Cheque and that Ex.P.6/ Cheque belongs to him. Since the Ex.P.6 Cheque pertains to account maintained by the accused and the signature on it is of the accused, the presumption arises under Section 139 of N.I.Act in favour of the complainant. In Rangappa /vs/ Mohan reported in 2010 Crl.L.J.2878, the Hon'ble Apex Court has held that:
"Once the execution of Negotiable Instrument is either proved or admitted, then the Court was drawn presumption available U/s.139 of N.I.Act to the effect that Negotiable Instrument Act has been drawn for valid consideration"
15. In this case the accused has failed to rebut presumption available to the complainant U/s.118 and 139 of N.I.Act. The evidence of Pw.1 and Exs.P.1 to P.9 coupled with presumption under law establishes that Ex.P.6/Cheque was issued towards discharge of legally recoverable debt and the appellant has not rebutted the said presumption. Considering the oral and documentary evidence, the Court below has rightly drawn the presumption U/s.139 and 118 of N.I.Act and come to conclusion that accused has not rebutted the presumption and 13 Crl. Appeal.No.1497/2015 therefore, held that accused has committed the offence. The complainant has complied with all statutory requirement U/s.138 of N.I.Act. Even the accused in his chief-examination itself has admitted that he has received the Ex.P.8 legal notice and that he has given reply to the Ex.P.8 and therefore, on reconsidering the oral and documentary evidence on record, the contention urged by the learned counsel for the appellant cannot be accepted. Therefore the impugned Judgment of the trial Court does not calls for any interference. Accordingly, I answer point Nos.1 and 2 in the Negative.
16. POINT NO.2: - In view of the above discussions and my findings on point No.1, I proceed to pass the following:
ORDER The criminal appeal filed by the appellant/accused under Sec.374 of Cr.P.C. is hereby dismissed.
The judgment of learned 22nd Addl.
Chief Metropolitan Magistrate, Bengaluru dated 18.11.2015 passed in C.C.No.6771/2012 is hereby confirmed.14 Crl. Appeal.No.1497/2015
Send the copy of the Judgment along with records to the Lower Court forthwith.
(Dictated to the Stenographer transcribed and typed by her, and the corrected and pronounced by me in the open court on this the 05th day of August, 2016).
(Parameshwar Prasanna.B.) LXII Addl. C.C. & Sessions Judge, BANGALORE CITY.15 Crl. Appeal.No.1497/2015