Bangalore District Court
Services vs Represented By Its Proprietor on 20 January, 2016
IN THE COURT OF LXIII ADDL., CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY.
(CCH-64)
DATED THIS THE 20TH DAY OF JANUARY 2016.
1. PRESENT
SRI.JOSHI VENKATESH, B.A.LL.B,(Spl),
LXIII Addl., City Civil & Sessions Judge,
Bangalore.
Crl.Appeal No.1092 of 2015
Accused/ M/s. DEL-Q ENGINEERING &
Appellant : SERVICES,
Represented by its Proprietor
Mr. Momin Ahmed,
No.48, 9th Cross,
2nd Main, Doddanna Indl. Estate,
Peenya 2nd Stage,
Bangalore - 560 091.
(By Sri.Nagaraja Kumble, Adv)
/Vs/
Complainant/ M/s. Invader,
Respondent : Represented by its Proprietor,
Mr. A.Srinivas,
No.23, Ground Floor,
Doctor's Layout, 1st Cross,
Kodichellahalli,
Bangalore - 560 068.
(By Sri. I.D., Adv., )
*****
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JUDGMENT
1. Appellant/accused filed this appeal praying this Court to set-
aside the judgment of conviction passed against the appellant by XXV A.C.M.M., Bangalore on 04.08.2015 in C.C.No.9427/2014 and acquit the accused/appellant, in the interest of justice.
2. Appellant is the accused and complainant is the respondent in the trial court. For the sake of convenience in the judgment parties to the appeal are referred as per their ranks in the trail court.
3. Brief facts of the complainant's case are as under :
Complainant filed complaint against the accused alleging that accused has committed the offence punishable U/Sec.138 of the N.I.Act. After sworn statement the trial court took cognizance of the offence, registered a case against the accused and issued summons.
4. In response to the summons issued by the Court accused appeared before the Court and released on bail for the offence pun. Under section 138 of N.I.Act. Plea recorded. Accused not pleaded guilty and claims to be tried.
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5. In order to prove the case, complainant examined himself as PW.1 and got exhibited Ex.P.1 to P.7 documents. After closure of the evidence of the complainant 313 statement of the accused was recorded. Accused examined himself as DW1 and got marked 3 documents as Ex.D.1 and D.3.
6. After hearing the arguments, trial court convicted the accused for offence punishable U/Sec.138 of the N.I.Act. Hence aggrieved by the judgment passed by the trial court Appellant/accused filed this appeal before this Court on the following grounds :
Judgment passed by the trial court is against the law, facts and against settled principles of criminal jurisprudence. There are serious material contradictions and improvements in the statement of the complainant and the benefit of doubt should be given to the accused. Complainant failed to prove his case. Trail court not appreciated the contention of the accused raised during the course of arguments. Accused is innocent and no offence is committed by him. Complainant and accused is business people and it is purely a business transaction. Dispute is of civil nature. The dispute arisen between the parties is due to breach of contract. Trail court 4 Crl.A.1092/2015 not gone through the agreement entered between the parties. Both the parties have agreed to invest for the development and manufacturing die-tool. Both the parties have agreed to issue cheque to each other as security.
Accused has 3 times issued cheques as security to safeguard the interest of the complainant. Likewise, complainant has also issued a cheque to the accused as security to safeguard the investment of the accused.
It is the business of the complainant who came to accused and placed order for developing and manufacturing the Die Tool. In the first agreement dated 16.08.2010 the cost to manufacture of die tool is shown as Rs.12,50,000/-. Complainant invested Rs.8,00,000/-. Remaining amount is to be invested by the accused. Complainant falsely contended that whole investment is made by him. Trial court failed to observe and understand the agreement executed between the parties. Trial court further misdirected itself in observing the contentions of the complainant in his evidence and cross examination. Old cheque of the accused was issued in the month of June 2012 as a security. Complainant used the opportunity and presented the same 5 Crl.A.1092/2015 after one and half year i.e. on 06.12.2013 by filing the date on it. Ex.D.3 Bank statement clearly shows that Ex.P.3 cheque is issued in the month of JUNE 2012 not in the year 2013. Trial court ought to have held that there is non existing legally recoverable liability. Judgment of conviction is contrary to the law and evidence. Proper opportunity is not given. Documentary evidence on record is not properly appreciated while passing the judgment. Along with other grounds to be urged at the time of arguments by accused prayed this Court to allow the appeal.
7. After registering the case, same is made over to this court for disposal in accordance with the law. This Court issued notice to the respondent/complainant for his appearance. Complainant appeared through advocate. LCR received.
8. Both Accused and complainant advanced arguments.
Perused the records before the court.
9. The point that arise for consideration are:
Point No.1: Whether the judgment passed by the trial court is illegal, capricious and interference of this Court is necessary in the judgment passed by the trial court?
Point No.2 : What Order?
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10. My findings on the above points are as under:
Point No.1: In the Negative, Point No.2: As per the final order for the following:
REASONS
11. Point No.1: After hearing the arguments and on perusal of the records before the Court, it is clear that complainant and accused entered into the Project agreement dated 16.08.2010 as per Ex.P.1 for manufacturing of Die Tools of the computer cabinet to the complainant. Accused agreed to the complainant to manufacture and supply of three different dye tools for Rs.12,50,000/-. It is also admitted fact that, complainant has paid advance amount of Rs.5,56,250/- in two different installments. Accused agreed to deliver the same on or before 15.11.2010 with a grace period of 15 days. As agreed accused not supplied the die tools to the complainant. The period of agreement also lapsed. Then both complainant and accused agreed to extend the date of delivery of the said DIE TOOLS by executing fresh agreement dated 19.08.2011 which is marked at Ex.P.2. It is also clear from the records before 7 Crl.A.1092/2015 the Court that, after expiry of the old cheque given by the accused to the complainant, complainant collected cheque for Rs.5,56,250/- from accused which is clear from Ex.P.2.
In Ex.P.2 it is clearly shown that the said cheque is given as a security. Even after executing second agreement as per Ex.P.2 accused could not complete the said DIE TOOLS within time as agreed. It appears that both the parties extended a period of delivery without any contract.
12. As per the say of the accused complainant returned the cheque shown in Ex.P.2 and collected new cheque Ex.P.3 in the month of JUNE 2012 from the accused as security. Since DIE TOOLS are not manufactured within time complainant cancelled the contract and asked the accused to return the money. Accused had also invested some money in the project and tried to convince the complainant about the situation. But complainant did not agree. Signed cheque given by the accused is presented for realization. As per the say of the complainant, on demand accused issued Ex.P.3 cheque to the complainant in December 2013 and complainant presented the cheque for realization. Cheque 8 Crl.A.1092/2015 presented was dishonored. Hence notice is issued. Accused not paid the amount within time. Hence complaint is filed.
13. In order to prove the case, complainant examined himself as PW.1 and got exhibited Ex.P.1 to P.7 documents. Ex.P.1 and P.2 are agreements. Ex.P.3 is cheque, Ex.P.4 is bank endorsement, Ex.P.5 is office copy of the legal notice, Ex.P.6 is postal acknowledgment and Ex.P.7 is reply notice. Accused examined himself as DW1 and got marked 3 documents as Ex.D.1 to D.3. Ex.D.1 is photographs of the proposed DIE TOOL and their parts, Ex.D.2 is C.D. and Ex.D.3 is statement of account.
14. As I have already stated, Ex.P.1 and P.2 agreements are not disputed one. Ex.P.3 is disputed cheque. According to the accused he issued the cheque as a security in the year 2012 and not in the year 2013 as shown in Ex.P.3 cheque. As on the date of issuance of the cheque there was no any existing liability of the accused or legally recoverable debt to be recovered by the complainant from the accused. In the business transaction cheque was given for security. If at all there is any breach of contract then it becomes dispute of civil in nature. The offence U/Sec.138 of the N.I.Act will not 9 Crl.A.1092/2015 attract. On the contrary it is contended by the complainant that accused admitted regarding receipt of the amount shown in Ex.P.3 and also issuance of cheque Ex.P.3 in favour of the complainant. Accused admits his signature on the cheque. Contention of the accused that it is issued in the year 2012 for security is not correct. When it is so, then I view of decision in the case of Rangappa Vs. Mohan presumption arises in favour of the complainant regarding legally recoverable debt and cheque is issued for legally enforceable debt. Of course the said presumption is rebuttable one.
15. On going through the records before the Court, it is very clear that, accused no where stated that, the amount received by him from the complainant in pursuance of Ex.P.1 and P.2 agreement is returned to the complainant. When accused admitted that he has received an amount of Rs.5,56,250/- from the complainant and not returned it, then the said amount becomes legally recoverable debt from the accused to the complainant. Of course agreement entered between both the parties is not materialized. When Ex.P.1 and P.2 agreements are not in force and fresh agreement is not entered into, then discussion on the contents of the said 10 Crl.A.1092/2015 agreements is not proper and required. Hence discussion is not made. Both the parties are at liberty to have their remedy available to them under the law before proper authority. But the fact that accused not returned the amount received by him to complainant is clear from the records before the court. As such contention of the accused that, there is no any legally recoverable debt exists on the date of issuance of the Ex.P.3 cheque is not acceptable one. Even though for the sake of arguments it is admitted that the cheque is issued for the purpose of security, dishonor of the said cheque will attract the offence U/Sec.138 of the N.I.Act. Even though lengthy cross examination is made to the complainant, absolutely no material is brought before the Court to show that, there is no any legally recoverable debt by the accused to the complainant. I have gone through the citations relied upon by the advocate for the accused. Absolutely there is no any second opinion about the same. But, the facts and circumstances of the said case shown in the relied upon citations and the facts and circumstances of the case on hand are different. Hence citation relied are not helpful to the accused.
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16. In this case complainant clearly stated that when accused fails to discharge the liability of supply of materials, on demand by complainant accused issued Ex.P.3 cheque. Admittedly cheque number shown in Ex.P.2 agreement and Ex.P.3 cheque are different. Ex.D.3 is not sufficient to show that Ex.P.3 cheque is issued in the year june 2012 to the complainant. No independence evidence is led to prove the said fact. Suggestion made by the accused is denied by complainant in his corss examination. Complainant clearly stated in his cross examination that by returning the old cheque he received the Ex.P.3 cheque from the accused in the month of December 2013. The probability stated by the complainant is acceptable one. Hence contention of the accused that cheque is given in the year 2012 is not acceptable one.
17. Accused admitted in his cross examination that he has not produced any documents to show he has invested the Rs.4,00.000/- in the project. On going through Ex.P.7 reply notice it is very clear that, accused admitted regarding receipt of the amount from the complainant and there is no evidence before the Court to show that, the said amount is 12 Crl.A.1092/2015 repaid to the complainant. Of course accused never contended that, the said amount is repaid to the complainant. In the notice it is clearly stated that, accused is ready to settle the matter amicably. This also clearly goes to show that, accused is due to the complainant to the extent of the amount shown in Ex.P.3 cheque. Hence contention of the accused that there is no legally recoverable debt exists on the date of issuance of cheque is not acceptable one.
18. When appellate court is accepting the reason given by the trial court for coming to the conclusion shown in the judgment, then I feel it is not necessary for the appellate court to again re-appreciate the evidence on record at length. I have gone through the judgment of the trial court. Trial court gave proper reasons for arriving to the conclusion. The contention of the accused that, since cheque is given for security of the loan the offence U/Sec.138 of the N.I.Act will not attract cannot be accepted at all. Accused fails to show before the court that Ex.P.3 cheque is given for the security. Even if the contention of the accused taken into consideration that the cheque is 13 Crl.A.1092/2015 given for the security, since accused admitted that cheque belongs to his account and signature on it, presumption arises in favour of the complaint. Hon'ble apex court of India held as under:
Criminal Appeal No.728 of 2015 T.Vasanthakumar v. Vijayakumari 2015 SCC On Line SC 394 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION (BEFORE J.CHELAMESWAR AND PINAKI CHANDRA GHOSE, JJ.) T. Vasanthakumar ....... Appellant .Vs. Vijayakumari ....... Respondent Criminal Appeal No.728 of 2015 (Arising out of SLP (Crl.) No.8091 of 2011) Decided on April 28, 2015 Debt, Financial and Monetary Laws - Negotiable Instruments Act, 1881 - S.139 r/w S.138 - Presumption under S.139 in favour of holder of cheque - Cheque dt. 20-5-2006 was dishonoured because the payment was stopped - Contention of the respondent that the cheque was given to the complainant long back in 1999 as a security to a loan
- Repelling the contention of the respondent - Held, once the cheque as well as the signature has been
14 Crl.A.1092/2015 accepted by the accused respondent, the presumption under S.139 would operate and the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability - On facts, court held rejected the defence of cheque as one issued as security since cheque was dishonoured because the payment was stopped and not for nay other reason which implies that the accused had knowledge of the cheque being presented to the bank.
In the present case also cheque is dishonoured as funds insufficient and not for any other reasons.
19. If at all there is any breach of contract or violation of the agreement, accused is at liberty to approach the appropriate authority for proper remedy. But in the present case the probable defense taken by the accused is not acceptable one. Accused fails to show before the Court that there is no any legally enforceable debt as on the date of issuance of Ex.P.3 cheque. Hence, I am of the opinion that, order of the trial court not suffers from any illegality and no interference of this court is required in the judgment of the trail court. Accordingly, Point No.1 is answered in the Negative.
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20. Point No.3 : In view of the discussion made above and the findings given on point No.1, this court is of the opinion that appeal filed by the appellant deserves to be dismissed. Accordingly I am going to pass the following:
ORDER
1. Appeal preferred by the appellant/accused against judgment passed by XXV A.C.M.M., Bangalore, in C.C.No.9427/2014 dated:
04.08.2015 is dismissed.
2. The Judgment passed by XXV A.C.M.M., Bangalore, in C.C.No.9427/2014 dated: 04.08.2015 is hereby confirmed.
3. Office is directed to return the LCR along with copy of this judgment.
(Dictated to the Stenographer, the transcript revised by me and then pronounced in the open court on this the 20th day of January 2016).
(JOSHI VENKATESH), LXIII Addl., City Civil & Sessions Judge, Bangalore.
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