Bangalore District Court
Sri. P.Bhaskar Reddy vs Yashodha G on 9 March, 2022
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Crl.A.No.866/2020
KABC010231312020
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-65) AT BENGALURU.
Dated this the 9 th day of March, 2022
-: P R E S E N T :-
Sri. RAJESHWARA, B.A., L.L.M.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
CRIMINAL APPEAL No.866/2020
APPELLANT/ : Sri. P.Bhaskar Reddy,
(ACCUSED - IN Aged about 48 years,
TRIAL COURT) : S/o. Venkatarami Reddy,
R/at No.176, 4th Main,
3rd Cross, NGEF Layout,
Sanjaynagar,
Bengaluru-560 094.
(By Sri.J.T.Rajan, Advocate)
/Vs/
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Crl.A.No.866/2020
RESPONDENT/ : Yashodha G.
W/o. Gopala A.
(COMPLAINANT - Aged about 38 years,
IN TRIAL COURT) R/at No.D-69, 2nd Main,
: Palace Guttahalli,
Bengaluru-560 003.
(By Sri.M.D.Paramesha, Advocate)
JUDGMENT
Appellant has filed this appeal U/s.374(3) of Code of Criminal Procedure 1973 (Cr.P.C.) being aggrieved by the judgment of conviction and order of sentence passed in C.C.No.6843/2019 dated 20.11.2020 on the file of XV-Addl.Chief Metropolitan Magistrate, Bengaluru (herein after referred as impugned judgment and order).
2. Parties to this appeal shall be referred to as per their ranking before the trial court for the purpose of convenience and for better appreciation of their contentions.
3. In the memorandum of appeal, appellant has submitted that trial court has not properly appreciated the evidence available on record. No sufficient opportunity was given to the appellant to establish his defence. No sufficient opportunity was given for cross-examination of the complainant. Impugned judgment of conviction and order of sentence is perverse. For the 3 Crl.A.No.866/2020 aforesaid reasons, appellant has prayed to interfere into the impugned judgment and order and set aside the same.
4. Along with memorandum of appeal, appellant produced certified copy of impugned judgment of conviction and order of sentence.
5. Respondent appeared through her counsel. Heard arguments. T.C.R. were called for reference in this appeal. Now, following are points that are arising for determination:
1. Whether in the light of evidence and material brought before the court, trial court is justified in convicting accused/appellant for the offence punishable U/s.138 of Negotiable Instrument Act (N.I.Act) and sentencing accused for the said offence?
2. Whether interference of this court is necessitated?
3. What Order?
6. It is answered for the aforesaid points as under:-
Point No.1: In the Affirmative Point No.2: In the Negative Point No.3:As per final order below, for the following:-4
Crl.A.No.866/2020 REASONS
7. POINTS NO.1 & 2:- These points are taken together to avoid repeated discussions.
8. Brief facts of the case of the complainant is that the complainant and wife of the accused are well known to each other. Accused is well known to the complainant through his wife. During the first week of February 2017 the accused borrowed loan of Rs.3,00,000/-(three lakhs) for financial assistance from the complainant and agreed to repay the same within two years along with interest @12 % per annum. At the time of availing loan, accused executed On Demand Promissory Note and consideration receipt. Accused did not pay the loan amount as agreed. After repeated demands and requests made by the complainant, accused had issued cheque bearing No.909987 dated 31.01.2019 for Rs.3,00,000/-(Three lakhs) in favour of the complainant. Complainant presented the said cheque which came to be dishonoured by the banker of the accused for the reason "funds insufficient". Inspite of receipt of legal notice, instead of repaying the bounced cheque amount accused had given evasive reply to the said legal notice. Hence, complainant filed complaint against the accused U/s.200 of Cr.P.C. for the offence punishable U/s.138 of N.I.Act.
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9. Perused entire order sheets, complaint filed U/s.200 of Cr.P.C., for the offence punishable U/s.138 of N.I.Act, sworn statement affidavit of the complainant, plea of accusation, examination-in-chief evidence of Pw.1 by way of affidavit, ingredients of documents at Ex.P.1 to Ex.P.8, statement of accused U/s.313 of Cr.P.C., defence evidence on behalf of accused Dw.1 and ingredients of documents at Ex.D.1 to Ex.D.9. There is no procedural defect of any nature while conducting trial relating to private complaint registered for the offence punishable U/s.138 of N.I.Act.
10. So far as appreciation of evidence is concerned, complainant is examined as Pw.1. Pw.1 has reiterated ingredients of complaint in his examination-in-chief affidavit. Ex.P1/cheque, Ex.P.2/Bank Endorsement made it clear that, cheque issued by the accused to the complainant came to be dishonoured by the banker of the accused. Ex.P.3/Legal notice, Ex.P.4/Postal receipt, Ex.P.5/D.P.Note, consideration receipt made it clear that, a legal notice got issued by the complainant to the accused demanding amount under bounced cheque. Ex.P.6/ reply notice made it clear that, accused had given reply to the legal notice issued by the complainant. Ex.P.7 is golden articles pawn receipt, Ex.P.8 is postal acknowledgement. With the help of the evidence of Pw.1 and contents of Ex.P.1 to Ex.P.8, complainant successfully 6 Crl.A.No.866/2020 discharged initial burden of proof casts U/s.138 of N.I.Act. Thereafter, burden shifts on the accused as per presumptions U/s.118 of N.I.Act in the form of reverse onus on the accused to rebut presumptions.
11. Accused appeared before the court and enlarged on bail. There is no specific plea of defence filed by the accused. To rebut presumptions, accused cross-examined Pw.1. Further accused examined himself as Dw.1 got marked 9 documents Ex.D.1 to Ex.D.3 are income tax returns for the year 2015-16 to 2- 17-18. Ex.D.4 to Ex.D.9 are six work orders of L. & T Company.
12. Before considering the point whether the accused succeeded to rebut presumptions and to establish his defence to the extent of probabilities, it is just and necessary to accumulate undisputed facts in this case. Bank endorsement is not disputed. Fact that complainant and wife of the accused are known to each other is also not disputed.
13. Defence set up by the accused in this case is that he never borrowed any amount as alleged by the complainant. He did not borrow Rs.3,00,000/-(three lakhs) on 13.02.2017 from the complainant. Cheque No.909987 dated 31.01.2019 drawn on State Bank of Mysore, Malleshwaram Branch, Bengaluru-03 is 7 Crl.A.No.866/2020 fabricated and created. State Bank of Mysore merged with State Bank of India on 01.04.2017. Cheques issued by the State Bank of Mysore became invalid with effect from 31.3.2018. There is no legally recoverable debt. His wife and complainant are friends. He was engaged in national highway work of Hospete- Chithradurga Road from June-2018 to February 2019. He was keeping blank signed cheques in his house to meet the house hold expenses and for other necessities. He was issuing signed blank On Demand Promisory note and consideration receipt to the suppliers of materials. When he pays the amount, he use to take back the said On Demand Promissory Note and receipt and used to keep in his house. Complainant was visiting to his house. Complainant had taken 6 blank cheques from his house and misused them. He was not in necessity of borrowing loan. It is the complainant who borrowed loan from his wife. Writings on the cheque and On Demand Promissory note are not his writings. Complainant had no financial capacity to pay the alleged loan amount. There is difference in writing and in the ink used for writing.
14. To assess whether the accused succeeded in establishing the aforesaid defence to the extent of probabilities, it is just and necessary to consider admissions elicited in the cross- examination of Pw.1. No such admission is elicited in the cross-
8Crl.A.No.866/2020 examination of Pw.1 to prove the fact that the complainant had stolen 6 blank signed cheques of the accused from his house. No such admission is elicited in the cross-examination of Pw.1 to prove the fact that he did not borrow any amount from the complainant. No such admission is elicited in the cross- examination of Pw.1 to prove the fact that the complainant herself borrowed amount from the wife of the accused. No such admission is elicited in the cross-examination of Pw.1 to establish the fact that the complainant had no source to pay the alleged loan of Rs.3,00,000/-(three lakhs) particularly on 13.2.2017 to the accused. No such admission is elicited in the cross-examination of Pw.1 to establish the fact that by misusing the stolen blank signed cheques of the accused, complainant filed false complaint against him.
15. Accused examined himself as Dw.1, got marked 9 documents at Ex.D.1 to Ex.D.3 are Income Ta returns for the year 2015-16 to 2017-18. Ex.D.4 to Ex.D.9 are six work orders of L. & T. Company. In the cross-examination of Dw.1, it is elicited that he is not permanent resident of Hospete. Further it is elicited that being contractor, he has to invest first and claim it later.
16. Advocate for appellant submitted arguments stating that cheque in question is invalid cheque as per notification issued 9 Crl.A.No.866/2020 by the State Bank of India. Appellant is a contractor who will pay Rs.1 crore income tax. There was no necessity to the accused to borrow Rs.3,00,000/-(three lakhs) from the complainant. Accused owns residential house and vehicle. Respondent resides in a rented house. Husband of the complainant used to sell tea on footpath. There is no financial capacity to the complainant to lend Rs.3,00,000/-(three lakhs) to the accused. There are material alterations on the cheque and the said alternation made the cheque invalid. Trial court did not appropriate the evidence adduced by the accused and Dw.1 and contents of the documents producecd on his behalf. In the cross-examination of complainant/Pw.1 it is elicited that she is unable to state the date of payment of loan amount paid to the accused. She do not know the contents of the legal notice issued on her behalf. Further, pawn broker was not examined. Appellant is stranger to the respondent. Accused did not filed any complaint against the complainant for theft of cheque because those cheques were invalid and accused was not aware of theft of the cheques because he kept those cheques only for his urgent necessity.
17. Advocate for appellant filed written arguments and also filed memo with an article published regarding invalidity of cheque books issued by SBM bank merged with SBI on dated 3.11.2017. Perused the same.
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18. Defence set up by the accused in this case is that his invalid signed cheques kept in his house was stolen by the complainant and filed present false complaint by misusing the said cheques. That means it is not in dipsute that cheque in question belongs to the bank account of the accused. Therefore, when the banker dishonoured cheque for "funds insufficient"
presumptions U/s.118 and 139 of N.I.Act has to be drawn in favour of the holder of the cheque. As per presumptions court has to presume that dishonoured cheque was issued to the holder of the cheque for consideration. Accused denied his signature on the cheque but made not effort to prove the same. Accused denied writing on the cheque but made no effort to prove his allegations. Accused denied borrowing of Rs.3,00,000/-(three lakhs) by taking defence that the complainant had no financial capacity to lend loan. Complainant produced receipt for pledging her gold ornaments to borrow Rs.3,00,000/-(three lakhs). The said evidence adduced by the complainant and documents produced in support of her contention that she borrowed amount by pledging her gold ornaments and lend Rs.3,00,000/-(three lakhs) to the accused is established. Defence set up by the accused that the complainant cannot file the complaint for dishonour of invalid cheque is difficult to accept for the reason that the complainant 11 Crl.A.No.866/2020 may not aware about change in the name of the State Bank of Mysore and merging State Bank of Mysore with State Bank of India leading to invalidate cheques issued by the State Bank of Mysore after particular date.
19. Perused the impugned judgment passed by the trial court. After taking into consideration the evidence adduced by the complainant/Pw.1, and accused/Dw.1 on oath against oath and by considering proved contents of documents produced at Ex.P.1 to Ex.P.8 and at Ex.D.1 to Ex.D.9, this court is of the considered view that the trial court rightly has held that the complainant proved the case against the accused for the offence punishable U/s.138 of N.I.Act by drawing presumptions U/s.118 and 139 of N.I.Act in favour of the complainant. Perused the observations made by the trial court. Reasons assigned by the trial court is based upon evidence and materials available on record. Therefore, allegations made by the appellant that the impugned judgment is perverse found false.
20. Considering the evidence adduced by complainant /Pw.1 and accused/Dw.1 on oath against the oath. This court is of the opinion that, several defence set up by the accused are all plausible defences and not possible one. Relying upon the law laid down in the judgment reported in 2011 (11) SCC 441 12 Crl.A.No.866/2020 (Rangappa V/s.Mohan and 2015(8) SCC 378 (T. Vasanthakumar V/s. Vijayakumar), Criminal Appeal No.230-231 of 2019 (Bir Singh V/s.Mukesh Kumar), trial court has held that the complainant succeeded in establishing her case and the accused has held guilty for offence punishable U/s.138 of N.I.Act by drawing presumptions in favour of the complainant.
21. In addition to that accused didn't produce any documents to show that, accused filed any complaint before the jurisdictional police against the complainant for misuse of his cheque. Accused didn't produce any document to show that he filed private complaint before the jurisdictional magistrate in this regard. Accused not even produced any documents to show that, he instructed his banker to 'stop payment' when cheque in question and other 5 stolen cheques were presented for realization to show that he was not liable to make any payment under the bounced cheque.
22. Compared the reasons assigned by the trial court in the impugned judgment of conviction with the allegations made in the memorandum of appeal. No grounds are made out in the memorandum of appeal to interfere into the Impugned judgment of conviction.
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23. So far as quantum of sentence is concerned, trial court has imposed sentence directing the accused to pay fine of Rs.3,10,000/-(three lakhs ten thousand) for dishonour of cheque issued for Rs.3,00,000/-(three lakhs). In default of payment of fine amount, accused shall undergo simple imprisonment for a period of three months. Out of fine amount of Rs.3,10,000/-(Three lakhs ten thousand), Rs.3,05,000/-(three lakhs five thousand) is ordered to be paid to the complainant by way of compensation and Rs.5,000/-(five thousand) fine to be paid to State exchequer. Fine amount imposed is within the purview of Section 138 of N.I.Act. Appellant failed to establish the fact that sentence imposed is exhorbitant. Accused/appellant failed to show that the quantum of fine imposed is excessive. There is no merit in the appeal. Order under appeal is sustainable in law. Hence, interference of this court is not necessary. Accordingly, point No.1 is answered in the affirmative and point No.2 is answered in the Negative.
24. POINT NO.3 :- In view of findings on the above points No.1 and 2, this criminal appeal is devoid of merits and the same is liable to be dismissed by confirming impugned judgment of conviction and order of sentence. Hence, following order is made:
14Crl.A.No.866/2020 ORDER Invoking provisions under Section 386 of Cr.P.C., this Criminal Appeal filed U/s.374(3) of Cr.P.C. is dismissed.
Consequently, impugned judgment of conviction and order of sentence dated 20.11.2020 passed in C.C.No.6843/2019 on the file of XV- Addl.Chief Metropolitan Magistrate, Bengaluru is hereby confirmed.
Appellant/accused is hereby directed to appear before the Trial Court to deposit the fine amount or to serve the sentence.
Office is hereby directed to send back T.C.R. along with certified copy of this Judgment to the trial court.
(Dictated to the Judgment Writer, script typed by her and corrected, signed and then pronounced by me in the open court on this the 9th day of March, 2022.) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.15
Crl.A.No.866/2020 09.03.2022 Judgment pronounced in the open court Vide separate judgment ORDER Invoking provisions under Section 386 of Cr.P.C., this Criminal Appeal filed U/s.374(3) of Cr.P.C. is dismissed.
Consequently, impugned judgment of conviction and order of sentence dated 20.11.2020 passed in C.C.No.6843/2019 on the file of XV-
Addl.Chief Metropolitan Magistrate, Bengaluru is hereby confirmed.
Appellant/accused is hereby directed to appear before the Trial Court to deposit the fine amount or to serve the sentence.
Office is hereby directed to send back T.C.R. along with certified copy of this Judgment to the trial court.
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.