Bangalore District Court
) Smt. Amritha Shankar vs W/O. Gajendran on 27 June, 2018
IN THE COURT OF 55TH ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE (CCH-56)
: Present :
Smt. H.G.Nagarathna, B.A. LL.B.,
55th Addl. City Civil & Sessions Judge,
Bangalore
: Crl. Appeal No. 1085/2016 :
Dated: this the 27th day of June 2018
APPELLANT/ 1) Smt. Amritha Shankar,
ACCUSED : W/o. Gajendran,
Age: 39 years, r/at 2nd Stage,
2nd Cross, MSH Layout,
Anandanagar, Bangalore-560 024.
2) Sri Gajendran,
S/o. Lakshman Periaswamy Reddy,
Age: 40 years, r/at 2nd Cross,
MSH Layout, Anandanagar,
Bangalore-560 024.
(By: Sri Sharass Chandra M., Advocate)
- V/s -
RESPONDENT : Smt. Veena B. d/o. Ramaswamy,
Age: 30 years, r/at No.1068,
G-1, Vaishnavi, Vihar Apartment 2nd Cross,
BEL Layout, Vidyaranyapura,
Bangalore-560 097.
(By : Sri R. Srinivas, Advocate)
JUDGMENT
In this case in both C.C.15981/2014 and C.C.15982/2014 were clubbed together and Common Judgment were passed by the Trial Court. Therefore, common discussions in both the criminal cases Judgment and the appeal is arising out of the both Judgments.
2 Crl.A.No.1085/20162. This is an appeal filed by the appellants u/sec. 374(3) of CPC to set-aside the Judgment passed by the trial court in convicting the accused for the offence u/sec. 138 of N.I. Act in C.C.No.15981/2014 & C.C.No.15982/2014 and prayed to pass acquittal order in the case.
3. Being dissatisfied with the trial court orders passed on 22-8-2016 the appellant before this court and the accused before the trial court here-in-afterwards called as appellant filed this case against the respondent questioning the Judgment of the trial court on several grounds that the trial court has not given proper opportunity to the appellant and the defence arguments and the accused was not provide the fair and full opportunity to put his case place on records before the trial court and the accused has also stated that the court has not appreciated the Bank statement and the agreement enter between the parties and embossing blank paper executed by the appellant. Therefore, on the basis of the blank papers the agreement was created. The cheque in question was issued much earlier to non-CTS cheques, which are Ex.P.10 to 17 earlier to the transaction which was admitted by the appellant the trial court has not consider this aspect and prayed to set-aside the order.
4. Heard on both side on behalf of appellants and respondent.
5. Now the following points arise for my consideration are:-
3 Crl.A.No.1085/20161) Whether Judgment of the trial court passed upon the principles of law and fact?
2) Whether the interference of this court is necessary?
3) What order?
6. My answer to the above points are:-
Point No.1 : In the Affirmative,
Point No.2 : In the Negative,
Point No.3 : As per final order for the following:
REASONS
7. Point Nos.1 and 2:- Now let us scrutiny the evidence of documents adduced by parties. The sum and substance of evidence of PW1 is that who is respondent herein and herein afterwards called as respondent stated that the appellant married one Amrutha Shekhar. The appellant and his wife are known to the family of respondent Smt. Veena B. since 10 years and the appellant along with his wife requested the respondent to become the guarantor to get the hand-loan of Rs.28 lakhs from one Mr.Shivaraj and accordingly the said Shivaraj, who is the friend of accused and his wife, they entered into a contract of guarantee of hand-loan. Thereafter, the said Shivaraj had given hand-loan of Rs.28 lakhs in cash to the appellant and his wife and hand-loan transactions were over and the respondent stood as a guarantor of the said hand-loan taken from Shivaraj. The appellant and his wife agreed that they will make the payments to the Shivaraj without fail and thereafter the appellant and his wife to discharge 4 Crl.A.No.1085/2016 liability had issued 6 cheques belonging to the wife of the accused and requested the Shivaraj to present the said cheques only after oral instructions given by them and promissory note came to be executed and consideration receipt written entire transactions were over on 28-8-2013 and statement of Bank accounts were placed by the appellant along with election I.D card, Pan card and salary slip and also they have handed over the copies of the title deeds of house bearing No.15, cheques paid receipt, produced khatha certificate and balance settlement of loan and thereafter in the month of October the appellant and his wife had repaid Rs.4 lakhs in cash to the said Shivaraj out of Rs.28 lakhs loan taken by them on the guarantee of the respondent and remain Rs. 24 lakhs were in due and thereafter in the month of December to discharge the liability the wife of the appellant had issued one cheque for Rs.14 lakhs dated 26-1-2014 and another cheque dt. 2-2-2014 for Rs.10 lakhs drawn on SBI, RT Nagar, Bangalore cheque Nos. 404799 & 404800 respectively. Inspite of issuance of cheques they have intimated that they have to arrange the amounts and requested the Sri.Shivaraj not to present the cheques for encashment and last date they have requested on 24-4-2014 and informed that on that day they would not be failed to pay the amount, but they did not pay on that day then being the guarantor for the said loan the respondent should pay Rs.24 lakhs to him, for that the respondent agreed. On 24-4-2014 the appellant and his wife requested the respondent to make payment of Rs.24 lakhs on 2-4-2014 which was not agreed by the Shivaraj and again they requested the guarantor the respondent that she 5 Crl.A.No.1085/2016 would pay Rs.24 lakhs to the said Shivaraj. Then thereafter the said Shivaraj asked to pay the said amount and accordingly on 24-4-2014 as the deadline the respondent mobilized the amount of Rs.24 lakhs and went to the Shivaraj's office and paid given a sum of Rs.24 lakhs as a guarantor and he received receipt having received the said amount on behalf of the appellant and his wife and the accused promised that they would pay the amount to the respondent and issued a cheque of Rs.3 lakhs and Rs.21 lakhs to discharge the liability for which the loan amount taken by the appellant was repaid by the appellant as a guarantor and thereafter the appellant presented the cheque before the bank, which was bounced and the notice was issued, but no response and no reply. Hence constrained to file this case against appellants invoking section 138 of N.I. Act.
8. The PW1 was cross-examined at length. The suggestions made by the appellant at the time of cross-examination that the appellant was in due only Rs. 3 lakhs, which was at Ex.D.1 and it is also their suggestion by hand in glow with Amritha Shankar and also Shivaraj, the respondent was taken undue advantage of the situation and also much was cross-examined with respect the dispute in between the personal matrimonial dispute between respondent and her husband in respect of complaint u/sec. 498(A) of IPC and also in respect of pledging of golden jewels in Muthoot Finance company by her husband and also in respect of purchase of stamp paper at the time of execution of loan agreement in between Shivaraj and the appellant.
6 Crl.A.No.1085/20169. Now coming to the evidence of DW1, who is none other than Mr.Shivaraj, who has hand over the hand loan of Rs.28 lakhs to the appellant on the guarantorship of respondent has stated that at the time of execution of Ex.P.8 the accused has issued three cheques and he know the complainant and his mother and in para No.4 of his written statement he has stated that 24-4-2013 the complainant and appellant has to pay the amount due and on the same day itself the complainant had paid amount on behalf of the appellant and it is also stated before execution of Ex.P.8 the complainant had received Rs.30 lakhs compromised money and compensation amount from her husband in a matrimonial case.
10. Now coming to the evidence of DW2, the Chief Manager of SBI Smt. Nithyakalyani has stated that Ex.P.3 is pertain to SBI, R.T Nagar branch and the pass book was given to the customer of the said Pass Book from SBI, R.T. Nagar branch and that Pass Book was in the name of accused. The Bank Pass Book is at Ex.D2. In Ex.D.2 & Ex.D3 there is no mentioning of cheque. The letter given to the accused is marked as Ex.P.3. The cheque in question was present and at the time of clearing it was not presented. Ex.P.1 is the non-CTS cheque and she does not know who has given Ex.P.3 and in the cross-examination the chief manager stated both accused and complainant have a bank account in their Bank at Kalyan Nagar and when the cheque was presented for encashment that cheque came to clearing branch, Ex.D3 is written after issuing the records and after verifying the 7 Crl.A.No.1085/2016 bank statements in the system and cheque in the system and bank on verifying the cheque the Bank authorities are going to issue the shara and as per Ex.P.2 the complainant had presented the cheque for encashment and after verifying the account of the accused Ex.P.3 shara was given by the Bank and she also agreed that generally the holder of the account when they presented the cheque and if the same was bounced the amount was withdrawn from their account. Ex.P.20 is the complainant bank Pass Book. As per Ex.P.20 Rs.204/- was drawn from the account, Ex.P.20(a) is the report. On perusal of Ex.P.1 to 3, it shows that the complainant had presented the cheque for encashment, but the same was dishonoured and witness also agreed non-CTS cheques were also present before the bank right now and in the re- examination the Manager stated non-CTS cheques are to be cleared-off once in a week and in the cross-examination it has stated that the non-CTS cheque report or shara will be written on perusal of the account holder statement. The evidence of this witness discloses the PW1 had presented the cheque for encashment, but the same was bounced and return with a shara.
11. Now coming to the documentary evidence are concerned Ex.P.1 is the cheque in question for a sum of Rs.3 lakhs which was bounced due to funds insufficient. Ex.P.2 is the Bank slip, Ex.P.3 is the Bank endorsement, Ex.P.4 is the Legal Notice, Ex.P.5 is the postal acknowledgment having served upon the appellant, Ex.P.6 is the registered post not claimed by the appellant, Ex.P.8 is the agreement of guarantee executed in between the 8 Crl.A.No.1085/2016 respondent Veena Balaji and Shivaraj dated. 28-8-2013 that the respondent stood as a guarantor to the loan amount taken by the appellant and his wife for a sum of Rs.28 lakhs for the immediate and urgent financial needs of the appellant and his wife and in clearance of that loan guarantor-respondent had issued cheques for a sum of Rs.28 lakhs, Ex.P.8 is the consideration receipt in pursuance of agreement, Ex.P.9, 10, 11, 12, 13, 14, 15 and 16 are cheques, Ex.P.17 is the document which clearly discloses that the guarantor/respondent had paid a sum of Rs.24 lakhs towards the discharge of hand loan amount taken by the appellant and his wife. She discharged entire Rs.24 lakhs as a guarantor and the signatures demonstrates that on that date the loan was discharged on behalf of the accused, Ex.P.20 is the Bank Pass Book, Ex.P.21(a) is the self-cheque realized on 24-4-2014 for a sum of Rs.10 lakhs drawn on Vijaya Bank, Ganganagar main road branch, Ex.P.22(a) is a self-cheque drawn on Karnataka Bank, R.T.Nagar branch dated 24-4-2014, self-cheque drawn and realized a sum of Rs.14 lakhs.
12. On analyzing the evidence on record and the documentary evidence Ex.P.1 to Ex.P.22 it demonstrate and it is clear that there was a loan transactions in between Mr.Shivaraj and the appellant and his wife for a sum of Rs.28 lakhs for their immediate financial needs, in which the respondent as a friend of appellant and the respondent stood as a guarantor for the said loan of Rs.28 lakhs on the date there was a guarantors agreement executed the appellant had issued a cheques and instructed 9 Crl.A.No.1085/2016 Mr.Shivaraj not to present said cheques until they informed him to present the same before the Bank after deposit the amount in the Bank, but one or the other reason they have taken time for presentation on time by Mr.Shivaraj and accordingly said Shivaraj agreed the same and not presented the cheque, but a date was given and agreed by both parties in presence of respondent Smt.Veena Balaji, who has agreed to repay the said loan on 24-4- 2014 a dead line. Accordingly on that date also Mr.Shivaraj tried to get the appellant to clear-off the loan, but they did not repay the loan. Finally the respondent went to Mr.Shivaraj office and executed a receipt that she had paid Rs.24 lakhs to Mr.Shivaraj on behalf of the appellant and his wife who were taken a loan and as a guarantor she paid the entire loan of Rs.24 lakhs and clear off the loan of Rs.24 lakhs on that very very crucial date dead line on 24-4-2014. Thereafter, she requested the appellant for repayment of her amount, but they gave their deaf ears and they have executed the cheques in question and same were presented before the Bank, which were bounced as insufficient funds. She caused the legal notice, no reply no response. Hence she files a case. The transactions held between the parties clearly discloses that the respondent had received the cheques in question towards the legally dischargeable debt as she repaid the loan taken by the appellant which was due to Mr.Shivaraj, which was clearly discloses through Ex.P.8. The mode of repayment through Bank by the respondent from Vijaya Bank, Ganga Nagar branch a sum of Rs.10 lakhs she withdrawn through self-cheque on 24-4-2014 and same day through self-cheque she withdrew a sum of Rs.14 lakhs from 10 Crl.A.No.1085/2016 Karnataka Bank, R.T. Nagar branch, which clearly demonstrates that she had repaid the loan taken by the appellant which was due to Mr.Shivaraj, for that amount he had executed cheques in question to the respondent for legally recoverable debt.
13. So far as the pledge of golden jewels in Muthoot Finance are concerned it is the personal affairs of the respondent she might have been in financial difficulty. Therefore, she was pledged her jewels, for which the appellant cannot question her personal acts and cannot question her marital disputes. Merely she had pledged the jewels the court cannot presume that she was in financial difficulty. Therefore she was not able to repay the loan taken by the appellant from one Mr.Shivaraj, it may be her personal affairs of several reasons and on several grounds she might had been pledge, sale or do what ever she likes her belongings the appellant cannot raise his voice in respect of her personal affairs are concerned. The appellant has questioned the availability of funds from the possession the respondent at the time of repayment of loan amount to Mr.Shivaraj, but the evidence on record discloses that she was received Rs.40 lakhs on life maintenance compensation amount from her husband in the divorce petition as a permanent alimony. Therefore, it can be held that she was capable of pay the amount of Rs.24 lakhs to Mr.Shivaraj on behalf of the appellant and his wife as the respondent stood as a guarantor to the said loan.
11 Crl.A.No.1085/201614. The case of petitioner and respondent that the event of the facts can be classified into three folds. The first fold is the appellant and his wife had borrowed loan of Rs.28 lakhs from one Mr.Shivaraj as the guarantor ship of respondent on an agreement of guarantee and accordingly the said Shivaraj had paid loan of Rs.28 lakhs to the appellant as wife and both husband and wife the appellants executed a cheques in favour of Mr.Shivaraj, but they have stated not to present the same unless they have informed him to present for realisation. The 2nd fold of facts are that thereafter the appellants and his wife fail to pay the said loan and they have not intimated Mr.Shivaraj for presentation of cheques and postpone the repayment of loan. Thereafter, the said Shivaraj requested several times, but one or the other reason they have taken time. Finally, a deadline was given on 24-4-2014 to repy the loan. The 3rd fold of facts are that on 24-4-2014 again the appellant fail to realize the said loan taken from Shivaraj and the said Shivaraj asked the respondent for repayment as she was the guarantor to the said loan and the respondent agreed that she will going to pay the said loan on 24-4-2014 without fail. On that day she mobilize the funds through two banks i.e., Karnataka Bank and Vijaya Bank as per the documents produced by her and then paid to the said Shivaraj after taking the receipt from him having paid Rs.24 lakhs to him and thereafter the appellant informed that they will giving repayment amount of respondent, but they did not pay inspite of request and finally they have issued the cheques in question for repayment of the said loan. Accordingly the said cheques were presented, but bounced due to 12 Crl.A.No.1085/2016 insufficient funds. The case arose after contemplation of due process of law and it can be held there is a recoverable debt.
15. The document Ex.P.8 is very crystal clear that there was a loan transaction and the respondent stood as a guarantor and that she paid the entire loan amount through Ex.P.18 to Mr.Shivaraj on behalf of appellant and his wife. None of these documents and the sentence on it does not disputed by the appellants the signature and the contents of the documents remains unchallenged and the appellant did not rebutted the presumption arises u/sec. 138 of N.I. Act that the cheque in question was not issued for legally recoverable debt. The documents on record crystal clear and sentence are does not remains unchallenged and unassailed without shaken. The Judgment of the trial court is passed upon sound principles of law and fact. No interference is called for. Hence I answer point No.1 in the Affirmative and point No.2 in the Negative.
16. Point No.3:- In view of above discussions on point No.1 and 2, I proceed to pass the following:-
ORDER The appeal filed by the appellant is hereby dismissed.
The Judgment and conviction order passed by the trial court in C.C.No.15981/2014 and C.C. No. 15984/2014 dated. 22-8-2016 u/sec. 138 of N.I Act 13 Crl.A.No.1085/2016 and sentence to pay a fine of Rs.24,50,000/- shall be paid to the complainant as compensation and balance of Rs.25,000/- shall go to state. In default he shall undergo simple imprisonment for a period of 1 year is hereby confirmed and further the said fine amount of Rs.24,50,000/- shall pay to the respondent within 2 months from the date of this order or he shall pay the interest of 5% from the date of filing of criminal cases in C.C.No. 15981/2014 and C.C. No. 15984/2014.
Send back the entire file to the trial court immediately by keeping the copy of the order.
(Dictated to the Judgment writer on computer and after corrections, pronounced by me in the open court on this the 27th day of June 2018.) (Nagarathna H.G.) th 55 Addl. City Civil & Sessions Judge, Bangalore.14 Crl.A.No.1085/2016