Bangalore District Court
In Sri H.C. Muniyellappa S/O vs Sri Rajanna S/O Late Nyathreddy on 25 July, 2015
IN THE COURT OF THE LIX ADDITIIONAL CITY CIVIL &
SESSIONS JUDGE, BANGALORE CITY
Dated this the 25th day of July 2015
PRESENT
************
Sri Deshpande.G.S, B.com. LL.M
LIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY
CRIMINAL APPEAL NO.859/2014 AND
CRIMINAL REVISION PETITION NO. 419/2014
APPELLANT IN Sri H.C. Muniyellappa s/o
CRI.APPEAL Chittaiah @ Pappanna,
NO. 859/2014: Aged about 59 years,
Residing at No. 135/10,
Doddamma Devi Temple Street,
Near Kodandarama Temple,
Hulimavu Village,
Bannerghatta Road,
Bangalore-560 076.
(R/by Sri P.Nehru, Advocate)
-Vs-
RESPONDENT Sri Rajanna s/o Late Nyathreddy
IN CRI.APPEAL Residing at Chandapura village,
NO. 859/2014:: Attibele Hobli, Anekal Taluk,
Bangalore District.
(Represented by Sri CVA, Advocate)
PETITIONER IN Sri Rajanna s/o Late Nyathreddy,
CRI.REVISION Residing at Chandapura village,
PETITION NO. Attibele Hobli, Anekal taluk,
419/2014: Bangalore District.
(Represented by Sri CVA, Advocate)
2 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014
RESPONDENT Sri H.C.MUNIYELLAPPA,
CRI.REVISION S/o Chittaiah, No. 135/10,
PETITION NO. Doddamma Devi Temple Street
419/2014: Kodandarama Temple,
Hulimavu Village,
Bannerghatta Road,
Bangalore-76.
[Represented by P.Nehru, Advocate]
COMMON JUDGMENT/ORDER
The accused being aggrieved by the order of conviction
and sentence passed by the XVI Additional CMM Bangalore in
the Judgment in C.C.No. 24048/2011 dated 9/7/2014 has
filed this appeal under Section 374(3) of Cr.P.C., on the
various grounds mentioned in the appeal memo.
2. The complainant being aggrieved by the said
Judgement has filed the Crl. Revision Petition under Section
397 of Cr.P.C., stating that, the sentence of fine imposed in
the Judgment is inadequate.
3. In this Appeal and Revision petition, the parties will
be referred as complainant and accused as stated in the Trial
Court, for the sake of convenience.
4. The complainant has filed the private complaint
against the accused alleging that, he has committed the
offence under Section 138 of N.I.Act. The case of the
3 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014
complainant in brief is that, the accused has borrowed loan of
Rs.6,00,000/- from the complainant on 4/2/2011. Towards
discharge of this loan, the accused has issued cheque for
Rs.6,00,000/- dated 29/3/2011 to the complainant. The
complainant has presented this cheque to the Bank for
encashment on 29/3/2011 and same was dishonoured with
endorsement that the accused was not having sufficient
funds in his account on 31/3/2011. Thereafter, the
complainant has issued legal notice to the accused to pay the
cheque amount by RPAD on 13/4/2011. The accused has
received the said notice, but has not paid the cheque amount
to the complainant. He has replied the said notice on the
untenable grounds. Even inspite of issuance of notice, the
accused has not paid the cheque amount to the complainant.
Therefore, the complainant has filed the private complaint
against the accused alleging that, he has committed the
offence punishable under Section 138 of N.I.Act.
5. After taking cognizance in the case, sworn
statement of the complainant was recorded. Thereafter,
summons was issued to the accused. He has appeared in the
4 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014
case through his advocate and was released on bail. Plea of
the accused was recorded.
6. Before the trial court, on behalf of complainant, he
himself is examined as P.W.1. The documents produced by
him are marked as Ex.P1 to Ex.P7. On behalf of accused, he
himself is examined as DW.1. No documents marked on his
behalf.
7. After hearing arguments of both sides, the learned
Magistrate has convicted the accused for the offence
punishable under Section 138 of N.I.Act and sentenced him
to pay a fine of Rs.6,00,000/- in default to undergo simple
imprisonment for one year for the said offence. It is further
held that, the complainant is entitled for the above said
amount as compensation under Section 357 of Cr.P.C.,
8. Being aggrieved by this Judgment, the accused
has filed the Criminal Appeal under Section 374 (3) of Cr.P.C.,
The complainant being aggrieved by the said Judgment has
filed the Crl.Revision Petition under Section 397 of Cr.P.C.,
9. After issuance of notices, both the parties
appeared in the Criminal Appeal and in the Criminal Revision
Petition. The records of the trial court are secured.
5 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014
10. The accused has filed the application under
Section 391 of Cr.P.C., seeking permission to adduce
additional evidence. The complainant has filed the objection
to this IA.
11. Heard arguments of both sides on the appeal and
criminal revision petition and on the application filed under
Section 391 of Cr.P.C., and perused the records of the trial
court. The advocate for the accused has also filed his written
arguments. The advocate for the accused submitted that, the
trial court has not properly appreciated the evidence on
record and has come to the wrong conclusion. The
complainant is claiming that, he has paid Rs.6,00,000/- as a
loan to the accused. There are no documents except cheque
to show that he has paid the said loan to the accused. The
said amount is not small amount. No prudent man will lent
so much of money without obtaining necessary documents
such as On Demand Promissory Note, consideration receipt,
agreement etc., But, in the present case, the complainant
has not obtained these documents from the accused. This
shows that the complainant has not paid the amount of Rs.
6,00,000/- to the accused. The complainant has not
6 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014
produced any document to show that he was having capacity
to pay the said amount. In the absence of this document, it is
not possible to believe the version of complainant. The
complainant in the cross-examination has admitted that, he
has received the cheque from the accused on 8/3/2009 and
he has paid the amount on 4/2/2011 to the accused. This
admission supports the version of the accused that the said
cheque is not issued to the complainant towards discharge of
debt. But, subsequently the complainant again has stated
that, he has received the said cheque from the accused on
8/3/2011. This is afterthought. No reliance could be placed
to this evidence of the complainant. The handwriting
mentioned in the cheque is not of the accused. In the cross-
examination, the accused has stated that the said cheque is
got filled by the accused through one of the girl. But,
subsequently has changed the version and has given different
statement. This shows that, the said cheque is not given by
the accused towards discharge of the loan. The accused has
taken the contention in the case that, the sister of the
complainant was looking after the Real Estate office of the
accused. At the time of closing the office, the sister of the
7 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014
complainant has demanded Rs.1,00,000/- from the accused.
He has refused for the same. Therefore, the sister of the
complainant has stolen some signed blank cheques of the
accused from the office of the accused and handed over the
same to the complainant and he has filed the false case
against the accused by misusing one of the cheque. The
accused has filed the private complaint against the
complainant in this regard. The accused has rebut the case of
complainant by raising the probable defence. These aspects
are not considered by the learned Magistrate. The accused
has filed the application to summon the sister of complainant
to give evidence on behalf of accused. The learned Magistrate
has rejected the said application. Opportunity is not given to
the accused to putforth his case. Therefore, the accused has
filed the application under Section 391 of Cr.P.C., in the
appeal seeking permission to adduce her evidence. The
evidence of this witness is essential to decide the appeal. The
impugned judgment passed by the learned Magistrate is
illegal and not sustainable in law. Hence, the advocate for the
accused prayed to allow the application filed under Section
8 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014
391 of Cr.PC., and also to allow the appeal and to acquit the
accused.
12. On the other hand, the advocate for the
complainant submitted that, the accused has borrowed loan
of Rs.6,00,000/- from him on 4/2/2011. Towards discharge
of this loan, the accused has issued the cheque for
Rs.6,00,000/-. This cheque was presented to the Bank for
encashment and same was dishonoured with endorsement
that the accused was not having sufficient funds in his
account. Thereafter, notice was issued to the accused to pay
the cheque amount. Even inspite of receipt of notice, the
accused has not paid the cheque amount. Therefore, the
accused has committed the offence under Section 138 of
N.I.Act. The complainant has produced his Bank Pass Book
in the appeal. From this it is made out that, the complainant
was having Bank balance of Rs.5,25,362/- on 3/2/2011 and
he has withdrawn the amount of Rs.5,25,000/- on 4/2/2011.
The complainant by including another cash amount of
Rs.75,000/- has paid the amount of Rs.6,00,000/- to the
accused. The accused is admitting that the said cheque is in
respct of his bank account and it bears his signature. There
9 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014
is a presumption under Sections 118 and 139 of N.I Act that
the said cheque was issued towards discharge of debt. It is for
the accused to rebut the case of complainant. In the present
case, the accused has taken the contention that, the sister of
the complainant has stolen some signed blank cheques from
the office of the accused and has handed over the said cheque
to the complainant and by misusing one of the cheque, the
complainant has filed the false case against the accused.
After issuance of notice, the accused has replied the said
notice. He has not taken this contention in the reply notice.
The accused has not given any complaint to the police in
respect of stolen of the said cheque by the sister of the
complainant. Even he has not given intimation to the bank
for stop payment. This shows that, the defence taken by the
accused is false one and afterthought. Said defence is taken
for the purpose of avoiding payment of the said amount to the
complainant. The accused has filed the private complaint
against the complainant after filing the complaint by the
complainant. This supports the version of complainant. The
complainant has proved that accused has committed the
offence u/s 138 of N.I.Act. Therefore, the learned Magistrate
10 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014
has rightly convicted the accused for the said offence. The
sentence of fine imposed on the accused in respect of said
offence is not adequate. The learned Magistrate ought to have
imposed double the cheque amount as a fine to the accused.
Therefore, the sentence of fine imposed to the accused is
liable to be enhanced from Rs.6,00,000/- to Rs.12,00,000/-
by allowing the Criminal Revision Petition. The application
filed by the accused under Section 391 of Cr.P.C., in the
appeal is not sustainable in law or on facts. This application
is filed with an intention to prolong the case. Hence, the
complainant prayed to dismiss the application filed under
Section 391 of Cr.P.C., and to dismiss the appeal filed by the
accused under Section 374(3) of Cr.P.C., and to allow the
Criminal Revision Petition.
13. In view of the rival contentions, the following points
that arise for my consideration in the Appeal and Criminal
Revision Petition are as follows :-
1. Whether the complainant proves beyond
all reasonable doubt that the accused
has committed the offence punishable
under Section 138 of Negotiable
Instrument Act?
11 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014
2. Whether the application filed by the
accused under Section 391 of Cr.PC., is
liable to be allowed?
3. Whether the sentence of fine imposed by
the learned Magistrate to the accused in
the impugned judgment is inadequate?
4. Whether the impugned judgment is
liable to be set aside?
5. What Order?
14. My finding to the above points are as under:-
POINT No.1: In the affirmative;
POINT No.2- In the negative;
POINT No.3:- In the negative;
POINT No.4:- In the negative;
POINT No.4:- As per final order,
for the following:-
REASONS
15. POINT Nos.1 TO 3 : The complainant has filed
the private complaint before the trial court alleging that the
accused has committed the offence under Section 138 of
N.I.Act. The case of the complainant in brief is that, the
accused has borrowed loan of Rs.6,00,000/- from him on
4/2/2011. Towards discharge of this loan, the accused has
issued cheque for Rs.6,00,000/- dated 29/3/2011 to the
12 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014
complainant. The complainant has presented this cheque to
the Bank for encashment on 29/3/2011 and same was
dishonoured with endorsement that the accused was not
having sufficient funds in his account on 31/3/2011.
Thereafter, the complainant has issued legal notice to the
accused to pay the cheque amount by RPAD on 13/4/2011.
The accused has received the said notice, but has not paid
the cheque amount to the complainant and thereby the
accused has committed the offence under Section 138 of
N.I.Act.
16. The complainant/P.W.1 in his evidence has
deposed the above said facts. Ex.P1 cheque issued in the
name of complainant for Rs.6,00,000/-. In this cheque,
signature of the accused is appearing. As per Ex.P2 Bank
endorsement, this cheque was dishonoured with endorsement
that accused was not having sufficient funds in his account.
The complainant has issued legal notice to the accused to
pay the cheque amount as per Ex.P3 by RPAD. This notice is
received by the accused and has replied the same as per
Ex.P6.
13 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014
17. There is a presumption under Sections 118 and
139 of Negotiable Instrument Act that the said cheque was
issued towards discharge of debt. It is for the accused to
rebut the case of complainant. The Hon'ble Supreme Court of
India in the decision reported in AIR 2010 SUPREME COURT
1898, Rangappa vs. Mohan held as under:
"The presumption mandated by Section 139
of the Act does indeed include the existence
of legally enforceable debt or liability. This is
of course in the nature of a rebuttable
presumption and it is open to the accused to
raise a defence wherein the existence of a
legally enforceable debt or liability can be
constested. However there can be no doubt
that there is an initial presumption which
favours the complainant. S. 139 of the Act is
an example of a reverse onus clause that has
been included in furtherance of the
legislative objective of improving the
credibility of negotiable instruments. While
Section 138 of the Act specifies a strong
criminal remedy in relation to the dishonour
of cheques, the rebuttable presumption
under Section 139 is a device to prevent
undue delay in the course of litigation.
However, it must be remembered that the
14 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014
offence made punishable by S. 138 can be
better described as a regulatory offence since
the bouncing of a cheque is largely in
nature of a civil wrong whose impact is
usually confined to the private parties
involved in commercial transactions. In such
a scenario, the test of proportionality should
guide the construction and interpretation of
reverse onus clauses and the
accused/defendant cannot be expected to
discharge an unduly high standard or proof.
In the absence of compelling justifications,
reverse onus clauses usually impose an
evidentiary burden and not a persuasive
burden. Keeping this in view, it is a settled
position that when an accused has to rebut
the presumption under Section 139, the
standard of proof for doing so is that of
'preponderance of probabilities'. Therefore, if
the accused is able to raise a probable
defence which creates doubts about the
existence of a legally enforceable debt or
liability, the prosecution can fail. The
accused can rely on the materials submitted
by the complainant in order to raise such a
defence and it is conceivable that in some
cases the accused may not need to adduce
evidence of his/her own."
15 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014
18. In the present case, the accused has taken the
contention that the sister of the complainant has stolen the
some signed blank cheques from the Real Estate Office of the
accused and has handed over the said cheques to the
complainant and he has misused one of the cheques and filed
false case against the accused. Accused has not borrowed any
money from the complainant and he has not issued said
cheque to the complainant towards discharge of debt. After
receipt of notice Ex.P3 from the complainant, the accused
has replied the said notice to him as per Ex.P6. In this reply
notice, the accused has not stated that the sister of the
complainant has stolen the said cheque from his office and
handed over the same to the complainant and by misusing
the same he has filed false case against the accused. If really
the sister of the complainant had stolen the said cheque from
the office of the accused, he would have stated this fact in his
reply notice. He has not given any complaint to the
jurisdictional police in this regard. Even he has not intimated
the bank to stop the payment. All these aspects show that the
said cheque is not stolen by the sister of the complainant
from the office of the accused. After filing the private
16 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014
complaint by the complainant. The accused had filed one
private complaint against the accused and his sister alleging
that the said cheque was stolen from his office. This private
complaint was also dismissed. The complainant has produced
his bank passbook in the appeal along with memo. From this
passbook it is made out that, the amount of Rs.5,25,000/-
was withdrawn from the bank on 4/2/2011 at the time of
paying the money to the accused. The complainant is saying
that by arranging another Rs.75,000/-, he has paid
Rs.6,00,000/- to the accused. From the evidence of P.W.1
and Ex.P1 cheque and this passbook entry, it is made out
that, the complainant has paid Rs.6,00,000/- to the accused
by way of debt and the accused has issued the said cheque to
the complainant towards discharge of debt. In view of the
above said decision of the Hon'ble Supreme Court of India
stated supra, it shall be presumed that the said cheque was
issued towards discharge of debt. In the present case, the
accused has not rebutted the case of complainant by raising
the probable defence. The defence taken by the accused is not
acceptable. The evidence of P.W.1 is reliable. In the cross-
examination, he has made a stray admission that, he has
17 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014
received the cheque from the accused on 8.3.2009 instead of
8.3.2011. This does not affect the veracity of the evidence of
P.W.1. Subsequently P.W.1 has clarified that the said cheque
was received on 8/3/2011. The accused is also contending
that the ink which is used to sign the cheque is different from
other writings of the cheque. He has not written the other
writings of the cheque. Therefore, he has not issued the said
cheque. This contention also cannot be accepted. Once the
accused is handed over the signed cheques to the
complainant, the complainant has got implied authority to fill
up the said cheque to the said amount as per Section 20 of
the N.I.Act. The complainant has presented the cheque to the
bank for encashment and same was dishonoured with
endorsement that the accused was not having sufficient
funds in his account. Even after receipt of notice, the accused
has not paid the cheque amount to the complainant.
Therefore, he has committed the offence under Section 138 of
N.I.Act.
19. The accused has filed the application under
Section 391 of Cr.P.C., seeking permission to adduce the
evidence of the sister of the complainant in the appeal. The
18 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014
accused in his reply notice has not stated that the sister of
the complainant has stolen the blank signed cheque from
his office and has handed over the same to the complainant
and by misusing the same, he has filed the false case against
the accused. Therefore, it is not possible to believe the
contention taken by the accused in this regard. Moreover, he
has not filed any complaint to the jurisdictional police in this
regard. No purpose will be served by examining the sister of
the complainant in the appeal. Hence, application filed by the
accused under Section 391 of Cr.P.C., cannot be allowed.
20. The complainant has filed the Crl.Revision Petition
stating that, the sentence of fine imposed by the learned
Magistrate is not adequate and it is liable to be enhanced.
Considering the cheque amount the learned Magistrate has
imposed the fine amount of Rs.6,00,000/- to the accused for
the offence under Section 138 of N.I.Act. Same is not illegal.
The sentence of fine imposed by the learned Magistrate is not
liable to be enhanced. Hence, the Crl.Revision Petition filed by
the complainant is liable to be dismissed.
21. The complainant has proved beyond all reasonable
doubt that the accused has committed the offence under
19 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014
Section 138 of N.I.Act. The learned Magistrate has properly
appreciated the evidence on record and has come to the right
conclusion. The learned Magistrate has rightly convicted the
accused for the said offence. The impugned judgment is not
illegal and as such it is not liable to be set aside. In view of
the above said reasons, the contentions of the advocate for
the accused cannot be accepted. There is no merit in the
appeal. Hence, this appeal is liable to be dismissed. Therefore,
points 1 to 3 are answered accordingly.
22. POINT NO.4: - In view of the above discussions
and my findings to the points No.1 to 3, I proceed to pass the
following:
ORDER
The application filed by the accused under Section 391 of Cr.P.C., is dismissed.
The appeal filed by the accused under Sec.374(3) of Cr.P.C. is dismissed.
The impugned order of conviction and sentence passed by the XVI Additional CMM Bangalore in the Judgment in C.C.No. 24048/2011 dated 9/7/2014 is hereby confirmed. 20 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014 The Criminal Revision Petition filed by the complainant under Section 397 of Cr.P.C., is dismissed.
Keep the copy of the original Judgment in Crl.Appeal No. 859/2015 and copy thereof in Criminal Revision Petition 419/2014. Send the copy of the Judgment along with records to the Lower Court forthwith.
*** (Dictated to the Judgment-writer directly on computer, 'Script' corrected and then pronounced by me in the open court on this the 25th day of July 2015).
(DESHPANDE.G.S.) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
21 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014 22 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014 25/7/2015 Common order pronounced in the open Court [vide separate common judgement/order] with the following operative portion:
The application filed by the accused under Section 391 of Cr.P.C., is dismissed.
The appeal filed by the accused under Sec.374(3) of Cr.P.C. is dismissed. The impugned order of conviction and sentence passed by the XVI Additional CMM Bangalore in the Judgment in C.C.No. 24048/2011 dated 9/7/2014 is hereby confirmed. Keep the copy of the original Judgment in Crl.Appeal No. 859/2015 and copy thereof in Criminal Revision Petition 419/2014.
Send the copy of the Judgment along with records to the Lower Court forthwith.
(DESHPANDE.G.S.) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
23 Crl.Appeal 859/2014 & Cri.Revision Petition No. 419/2014 Common order pronounced in the open Court [vide separate common judgement/order] with the following operative portion:
The Criminal Revision Petition filed by the complainant under Section 397 of Cr.P.C., is dismissed.
Keep the copy of the original Judgment in Crl.Appeal No. 859/2015 and copy thereof in Criminal Revision Petition 419/2014.
Send the copy of the Judgment along with records to the Lower Court forthwith.
(DESHPANDE.G.S.) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.