Bangalore District Court
Shivashankar vs Sri.Venkataram on 3 January, 2022
IN THE COURT OF THE LVIII ADDL.CITY CIVIL AND
SESSIONS JUDGE (CCH-59), BENGALURU CITY.
Dated this the 3rd day of January 2022
PRESENT
Sri.G.L.Lakshminarayana, B.Com., LL.B.,
LVIII Addl. City Civil & Sessions Judge (CCH-59),
Bengaluru.
: CRIMINAL APPEAL NO.369/2019:
APPELLANT : Shivashankar,
S/o Govindachar,
Aged about 35 years,
Residing at No.205,
Ist Cross, Hoodi,
Whitefield Road,
Mahadevapura Post,
Bangalore - 560 048.
(By Sri.S.M, Advocate)
-V/S-
RESPONDENT : Sri.Venkataram,
S/o Erappa,
Represented by SPA holder
Sri.Srinivasa.H.P.,
S/o Pillappa,
Aged about 39 years,
Residing at No.366,
Near Om Shakthi Temple,
Whitefield Road,
Hoodi Village,
2 Crl.Apl.369/2019
Mahadevapura Post,
Bangalore- 560 048.
(By Sri.N.K., Advocate)
JUDGMENT :
The appellant/accused has preferred an appeal under section 374(3) of Cr.P.C., to set aside the judgment of conviction and order of sentence passed in C.C.No.51694/2015 dated 16.01.2019 on the file of the learned 1st Additional Small Causes Court and XXVII ACMM at Bangalore, by allowing the appeal and to acquit the appellant/accused.
2. The parties to the appeal are hereinafter referred to their ranks assigned to them before the Trial Court for the sake of convenience.
3. The facts scenario of the case as per complainant is as under:
The complainant/respondent has filed a private complaint under section 200 of Cr.P.C., against the 3 Crl.Apl.369/2019 accused for the offence punishable under section 138 of N.I.Act alleging that the complainant was doing finance business in the name and style of V.S.Finance which is located at Hoody, when such being the fact the accused approached the complainant for loan of Rs.4,00,000/- in the month of September 2012 to start a water business for purchasing water tanker, and the accused also given assurance that he will be return the same within 8 or 9 months. Believing the words of the accused, the complainant was paid the said amount in the same month with 2% simple interest. Even after obtaining the said amount the accused not turned before the complainant side and the accused not paid neither interest amount nor the principal amount so for, when the complainant approached to the accused for repayment of said amount in the month of May 2013, the accused issued cheque bearing No.309071 dated 27.05.2013 drawn on State Bank of Mysore, Hoody Branch for Rs.4,00,000/- in favour of 4 Crl.Apl.369/2019 the complainant. The complainant presented the said cheque for encashment through his banker AXIS Bank Ltd, Hoskote Branch, but the said cheque was returned and dishonoured for the reasons "Funds Insufficient" on 29.05.2013. Thereafter the complainant issued legal notice dated 10.06.2013 to the accused calling upon him to pay the cheque amount. Despite of service of legal notice, accused failed to pay the amount covered under cheque. Hence, the complainant has filed a complaint.
4. The trial court took cognizance of the offence, sworn statement of the complainant was recorded and registered a case and issued summons to the accused.
5. In response to the court summons accused appeared before the trial court and he was released on bail. Accusation framed by the trial court, read over and explained to the accused. The accused has pleaded not guilty and claimed to be tried.
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6. In order to prove the case, the complainant himself examined as P.W-1 and got marked Ex.P.1 to Ex.P.7 documents. After closing the evidence of the complainant, the statement of accused under section 313 of Cr.P.C. was recorded. The accused himself examined as DW-1 and got marked one more witness as DW-2.
7. After hearing the arguments of both side and appreciating the oral and documentary evidence, the learned 1st Additional Small Causes Court XXVII ACMM at Bangalore, by impugned judgment and order of sentence dated 16.01.2019, convicted the accused/appellant for the offence punishable under section 138 of Negotiable Instruments Act and sentenced him to pay fine of Rs.4,05,000/- and in default of payment of fine, he shall undergo simple imprisonment for a period of six months and out of the fine amount a sum of Rs.4,00,000/- is ordered to be paid as compensation to the complainant and the balance 6 Crl.Apl.369/2019 amount of Rs.5,000/- shall be remitted as fine to the State.
8. Being aggrieved by the judgment of the trial court, the appellant/accused has preferred an appeal on the following grounds:
The complainant was the partner of V.S.Finance was running the chit business and the appellant father was one of the member for a chit of Rs.50,000/- and he was paying monthly instalment of Rs.5,000/- and on 10.02.2012 the father of the appellant bid the said chit for Rs.10,000/- and received the chit amount of Rs.40,000/- from the complainant and on 12.02.2012 the appellant issued the signed blank cheque to the complainant as security. After closing the said chit the complainant was not returned the signed blank cheque.
The appellant and his father are tried to trace the Venkataramu and after several efforts they came to know that Venkataramu is residing at Hosakote and the 7 Crl.Apl.369/2019 appellant and his father gone to his residence and asked about the filing of the said case, then the said Venkataramu informed the appellant and his father that he has not filed any case and he has not attended a single day in court proceedings. The disputed cheque which was received by Venkataraman was kept in the V.S.Finance office and due to misunderstanding between Venkataram and Srinivas, Venkataraman left the office and Srinivas who was one of the partner of V.S.Finance has misused the signed blank cheque. The said Srinivas has created false SPA in the name of Venkataraman. The complainant not produced any documents to show that the appellant has obtained loan of Rs.4,00,000/- from V.S.Finance and the complainant has not produced any document to show that the complainant is having financial capacity to lend loan of Rs.4,00,000/-. During the cross examination, the said Srinivas clearly admits that the appellant is a driver and except his salary of Rs.8,000/- no other source of income to the appellant.
8 Crl.Apl.369/2019 The appellant is not in a position to take that much of loan amount of Rs.4,00,000/-. The impugned judgment passed by the learned Magistrate is totally perverse, illegal, unlawful and bad in law. The impugned judgement and conviction passed by the trial court is contrary to the facts, materials and evidence placed on records and as such the judgement, conviction and sentence is liable to be set aside. Amongst other grounds, the appellant/accused has sought to allow the appeal and to set aside the impugned judgment and order passed by the trial court.
9. After service of appeal notice, the respondent appeared through his counsel.
10. Trial Court records are received.
11. In spite of giving sufficient opportunity given to both parties to address the arguments and to file written arguments. But both parties have failed to 9 Crl.Apl.369/2019 address the arguments and written arguments and perused the materials placed on record.
12. The following points arise for my consideration:-
1. Whether the trial Court has committed an error in convicting the accused for the offence punishable under Section 138 of Negotiable Instruments Act and it requires interference by this court.
2. What order?
13. My findings on the above points are as follows:-
POINT NO.1 - Negative;
POINT NO.2 - As per final order for the following:-
: REASONS:
14. POINT NO.1: The contention of the complainant is that the complainant was doing finance business in the name and style of V.S.Finance which is located at Hoody, when such being the fact the 10 Crl.Apl.369/2019 accused approached the complainant for loan of Rs.4,00,000/- in the month of September 2012 to start a water business for purchasing water tanker, and the accused also given assurance that he will be return the same within 8 or 9 months. Believing the words of the accused, the complainant was paid the said amount in the same month with 2% simple interest. Even after obtaining the said amount the accused not turned before the complainant side and the accused not paid neither interest amount nor the principal amount so for, when the complainant approached to the accused for repayment of said amount in the month of May 2013, the accused issued cheque bearing No.309071 dated 27.05.2013 drawn on State Bank of Mysore, Hoody Branch for Rs.4,00,000/- in favour of the complainant. The complainant presented the said cheque for encashment through his banker AXIS Bank Ltd, Hoskote Branch, but the said cheque was returned and dishonoured for the reasons "Funds Insufficient" on 11 Crl.Apl.369/2019 29.05.2013. Thereafter the complainant issued legal notice dated 10.06.2013 to the accused calling upon him to pay the cheque amount. Despite of service of legal notice, accused failed to pay the amount covered under cheque.
15. P.W.1 in his chief examination reiterated the facts as alleged in the complaint. In his cross- examination denied the suggestions that the accused has issued the cheque for security purpose and further denied the suggestions that Venkataramu was created by him in the GPA. The learned counsel for the accused in his cross-examination taken a contention that the accused has not issued cheque for clearance of loan and he has no source of income to lend money to the accused. This suggestion is denied by P.W.1. Further P.W.1 denied the entire suggestions put forth by the learned counsel for the accused.
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16. Ex.P.1 is SPA, it reveals that Venkataraman has given Special Power of Attorney in favour of P.W.1 to contest the case. Ex.P.2 is the cheque, it reveals that the accused has issued cheque in favour of the complainant. Ex.P.3-bank endorsement, it reveals that the complainant has presented the said cheque for encashment but the banker has given the endorsement as "funds insufficient". Ex.P.4-legal notice, it reveals that the complainant has issued legal notice to the accused calling upon him to pay the cheque amount. Ex.P.5 is courier receipt, it reveals that the complainant has issued legal notice to the accused. Ex.P.6 is the delivery sheet issued by Professional couriers and Ex.P.7 is acknowledgement of registration of Firms, it reveals that the complainant is running the business and the said company was registered under companies Act.
17. The DW-1 in his chief examination stated that he has not received the loan amount from the 13 Crl.Apl.369/2019 complainant. The complainant running chit business and his father was one of the member for chit of Rs.50,000/- and his father was paying monthly installment of Rs.5,000/ and on 10.02.2012 his father bid the chit for Rs.10,000/- and received chit amount of Rs.40,000/- from the complainant. On 12.12.2012 he gave blank signed cheque to the complainant as security. After clearing the said chit, the complainant was not returned his signed cheque and he has not taken any action against the complainant. No source of income to the complainant to lend money to him. Further in his cross-examination admitted that he has not taken any legal action against the complainant for misusing his cheque.
18. DW-2- in his chief examination stated that the complainant has filed a false case against his son. His son has not approached the complainant for financial assistance and he has not taken any financial assistance 14 Crl.Apl.369/2019 of Rs.4,00,000/- from the complainant. The complainant has forged the signature of his son and filed a false case against his son. In his cross-examination stated that after service of legal notice, he has not replied to the same and there is no document with regard to forging the signature of accused by the complainant.
19. The accused has not denied issuance of cheque during the cross-examination. He denied the signature. The accused has taken the contention that there is difference in the signature of the accused and signature found on the cheque. But the accused has not taken any legal action to send the admitted and disputed signature to the FSL. In the present case, the bank has not returned the cheque with endorsement that the signatures are differs. But it was returned with shara as "Funds insufficient". Hence, the accused has failed to prove the signature of cheque is not belongs to him, no documents produced to show that the complainant was 15 Crl.Apl.369/2019 running the chit transaction. The accused admitted the issuance of cheque and also admitted received the amount by his father from the complainant. DW-1 during the cross-examination admitted that after issuing the legal notice, no action taken by him against the complainant for filing the false complaint and misusing the cheque.
20. DW-1 has stated that after issuance of legal notice, he approached the complainant and who told that no case was filed against him. But the accused has not examined the said Venkataramu. The accused also examined his father as DW-2. During the cross- examination, DW-2 admitted that he issued the cheque No.309071 to the complainant in chit transaction. The said Venkataramu is none other than the complainant in the present case.
21. Perused the oral and documentary evidence placed by the complainant, it reveals that the 16 Crl.Apl.369/2019 complainant was doing finance business in the name and style of V.S.Finance which is located at Hoody, when such being the fact the accused approached the complainant for loan of Rs.4,00,000/- in the month of September 2012 to start a water business for purchasing water tanker, and the accused also given assurance that he will be return the same within 8 or 9 months. Believing the words of the accused, the complainant was paid the said amount in the same month with 2% simple interest. Even after obtaining the said amount the accused not turned before the complainant side and the accused not paid neither interest amount nor the principal amount so for, when the complainant approached to the accused for repayment of said amount in the month of May 2013, the accused issued cheque bearing No.309071 dated 27.05.2013 drawn on State Bank of Mysore, Hoody Branch for Rs.4,00,000/- in favour of the complainant. The complainant presented the said 17 Crl.Apl.369/2019 cheque for encashment through his banker AXIS Bank Ltd, Hoskote Branch, but the said cheque was returned and dishonoured for the reasons "Funds Insufficient" on 29.05.2013. Thereafter the complainant issued legal notice dated 10.06.2013 to the accused calling upon him to pay the cheque amount. Despite of service of legal notice, accused failed to pay the amount covered under cheque. Therefore, the accused has committed the offence punishable under section 138 of N.I.Act. The complainant has fulfilled the ingredients as contemplated under section 138 of N.I.Act. Hence, the Trial Court has rightly convicted the accused for the offence punishable under Section 138 of N.I.Act. I do not find any valid reasons to interfere into the judgment passed by the Trial Court. Accordingly, I answer point No.1 in the negative.
22. POINT NO.2: In view of my finding on point No.1, I proceed to pass the following:
18 Crl.Apl.369/2019 : ORDER :
The appeal filed by the appellant under section 374(3) of Cr.P.C., is hereby dismissed.
The judgment of conviction and order of sentence passed by the learned 1st Additional Small Causes Court and XXVII ACMM at Bangalore, in C.C.No.51694/2015 dated 16.01.2019 is hereby confirmed.
Send TCR to the concerned court along with copy of this judgment forthwith. (Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 3rd day of January 2022).
(G.L.Lakshminarayana) LVIII Addl. City Civil and Sessions Judge (CCH-59) Bengaluru City.
19 Crl.Apl.369/2019 Judgment pronounced in the open Court (vide separate order) ORDER The appeal filed by the appellant under section 374(3) of Cr.P.C., is hereby dismissed.
The judgment of conviction and order of sentence passed by the learned 1st Additional Small Causes Court at Bangalore, in C.C.No.51694/2015 dated 16.01.2019 is hereby confirmed.
Send TCR to the concerned court along with copy of this judgment forthwith.
(G.L.Lakshminarayana) LVIII Addl. City Civil and Sessions Judge (CCH-59) Bengaluru City.
20 Crl.Apl.369/2019