Bangalore District Court
Prabhakar Shetty vs S/O Shankar Shetty on 27 January, 2022
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 27th day of January, 2022.
Crl. Appeal. No.25314/2019
Appellant/ Prabhakar Shetty,
Accused:- S/o Shankar Shetty,
Aged about 57 years,
R/at No.27/2,
Nanjundeshwara Nilaya,
Ops. Anjaneya Temple,
C.V Raman Nagar,
Bangalore - 560093.
[By Sri. M. K Lokanath Reddy &
Associates -Adv]
V/s
Respondent/ Sri. Kandaswamy,
Complainant: Aged about 74 years,
S/o Late Singara Muraliar,
R/at Thanigalillam,
No.6, Prashant Layout,
Kodigehalli, Kadugodi (Post)
Bangalore -- 560067
[By Gangadhar & Rukmini
Associates -Adv.)
2 Crl.Appeal.No.25314/2019
JUDGMENT
This Appeal is preferred by the Appellant/ Accused U/Sec. 374(3) of Cr.P.C, being aggrieved by the Judgment of conviction passed by the LVII Addl. CMM, Mayohall Unit, Bangalore in CC.No.53479 of 2016, dtd. 03.10.2019, convicting the Appellant for the offence punishable U/Sec. 138 of NI Act, thereby sentencing him to pay fine of Rs.5,000/-. Indefault to undergo Simple Imprisonment for a period of 3 months. Further directed the Accused to pay an amount of Rs.56,150/-, out of the fine amount to the Complainant, as compensation U/Sec 357 of CrPC,. Indefault to pay compensation, the Accused shall undergo simple imprisonment for a period of one year.
2. The Brief facts leading to filing of the present appeal are:
The present Respondent filed a Complaint U/Sec. 200 of Cr.P.C. against the present Appellant, alleging that, the Appellant is known to him for several years; and he has approached him with a request to give handloan of Rs 30,000/-, Accordingly he has given him Rs 30,000/- during the 2 nd week of 3 Crl.Appeal.No.25314/2019 January 2014, while receiving the same, he assured to return the same within a period of 6 months. On completion of the said period, he insisted the Appellant to return the said amount, then he has issued a post dated Cheque bearing No 216347 dated 19.12.2014, drawn on the State Bank of India and requested him to present the said cheque, after the date mentioned on it. Accordingly, he presented the said Cheque, through his banker, but the said Cheque has returned unencashed with an endorsement 'Funds Insufficient' on 22.12.2014. Thereafter he got issued a statutory demand notice, through his counsel on 03.01.2015, calling upon the Respondent to pay the amount covered under the said Cheque. The said notice was served on him. Neither the Appellant complied nor replied the said notice.
On completion of the stipulated period required under the statute, the Respondent was constrained to file the present Complaint against the Appellant/Accused for the offence punishable U/Sec.138 of N.I.Act.4 Crl.Appeal.No.25314/2019
3. On being satisfied the Trial Court has issued summons U/Sec.204 of Cr.P.C., to the Respondent / Accused on 04.06.2016. The Appellant appeared before the Trial Court through his counsel on 16.09.2016 and he was enlarged on bail. Plea/ Substance of Accusation of the Appellant/ Accused was recorded by the Trial Court on 09.10.2018, wherein the Appellant has pleaded not guilty and claims to be tried.
4. The Complainant inorder to prove his case got examined himself as P.W.1 and got marked 05- documents as Ex.P.1 to Ex.P.5. PW1 was cross examined on behalf of the Respondent/ Accused on 04.06.2019 and 25.06.2019.
Statement of the Accused U/Sec. 313 of Cr.P.C., was recorded by the Trial Court on 02.07.2019.
Appellant/Accused got himself examined as DW1 On 11.07.2019 and did not get marked any document, in his defence. DW1 was cross examined on behalf of the Complainant on 29.08.2019.
On hearing both the sides, the Trial Court has passed the Judgment, convicting the Appellant/ Accused for the offence punishable U/Sec. 138 of N.I. 5 Crl.Appeal.No.25314/2019 Act on 03.10.2019. Hence, the Appellant is before this Court, being aggrieved by the said Judgment of conviction.
5. The Appellant has preferred this appeal alongwith an application at IA No.1/2019 U/Sec.5 of Limitation Act, praying to condone the delay of 8 days, in preferring this appeal. On preferring the appeal by the Appellant/Accused, this Court has suspended the sentence under appeal, for a period of three months, initially on 14.11.2019. Notice of the Appeal memo and I.A.Nos.1/2019 and 2/2019 was issued to the Respondent and TCR were called-for. Respondent set-in his appearance on 22.12.2020. TCR were secured on 13.01.2020.
Application at IA No 1/2019 filed by the Appellant U/Sec 5 of the Limitation Act, was allowed on 13.01.2021.
6. Inspite of affording sufficient opportunity, the Learned Counsel for the Appellant has failed to advance his Arguments. Hence Arguments of the Appellant was taken as "Not Addressed" on 17.11.2021 and Appellant was given an opportunity 6 Crl.Appeal.No.25314/2019 to file his Written Arguments on or before 25.11.2021, with due notice to the Learned Counsel for the Respondent. But the Appellant has failed to file his Written Arguments.
Inspite of affording sufficient opportunity, the Respondent has also failed to advance his Arguments. Hence Argument of the Respondent was taken as 'Not Addressed' on 06.12.2021 and Respondent was given an opportunity to file his Written Arguments on or before 17.12.2021, with due notice to the Learned Counsel for the Appellant. But the Respondent has failed to file his Written Arguments.
7. The Appellant has preferred this appeal on the following grounds:
Grounds of Appeal:
a) The Trial Court has gravelly erred in convicting the Appellant for the offence punishable U/Sec. 138 of N.I. Act, which is manifestly erroneous and opposed to the facts and circumstances of the case;
b) The Trial Court has miserably failed to appreciate the oral and documentary evidence on record, in a proper and perspective manner;7 Crl.Appeal.No.25314/2019
c) The Trial Court has failed to consider that, the Respondent has stolen the Cheque -Ex.P1 and by misusing the same and has filed the present Complaint;
d) The Trial Court has failed to consider that the Respondent has failed to prove the fact of advancing Rs.30,000/- to the Appellant, as contended by him;
e) The Trial Court has failed to consider that, the Appellant has not receive the Notice-ExP3, said to have been issued by the Complainant / Respondent;
and
f) The Trial Court ought to have acquitted the Accused for the offence punishable U/Sec.138 of NI Act, considering the defence of the Accused, as a probable defence.
Hence, prayed to allow the said appeal and setaside the Judgment of Conviction passed by the Trial Court.
8. Following points arise for my consideration;
1. Whether the Respondent/ Complainant is entitle for the benefit of presumption available U/Sec. 139 of N.I. Act?
2. Whether the Appellant/ Accused proves on the basis of preponderance of probabilities that, the Complainant has stolen the Cheque- Ex.P1?
8 Crl.Appeal.No.25314/20193. Whether the Trial Court is right in holding that, the Appellant/Accused has failed to rebut the presumption available U/Sec. 139 of N.I. Act?
4. Whether the Appellant/ Accused proves on basis of preponderance of probabilities that he has not received Notice-ExP3, issued by the Complainant?
5. Whether the Appellant/ Accused shows that the Order of Conviction and Sentence recorded by the Trial Court in CC.No.53479 of 2016, dtd.03.10.2019, deserves to be setaside, and thereby call for the interference of this Court?
6. What Order?
9. My finding on the above points are as under:
Point No.1 : In the Affirmative; Point No.2 : In the Negative;
Point No.3 : In the Affirmative; Point No.4 : In the Negative;
Point No.5 : In the Negative;
Point No.6 : As per final order for the following :9 Crl.Appeal.No.25314/2019
REASONS
10. The rank of parties will be referred to, as they were before the Trial Court.
11. Point No.1:
The Complainant has filed a Complaint U/Sec. 200 of Cr.P.C. alleging that, the Accused has the issued the Cheque-ExP1 to him, towards the repayment of the handloan amount given by him.
The said cheque was presented for its encashment through his banker, but the same have been returned unencashed with an endorsement "Funds Insufficient" on 22.12.2014, as per Ex.P2. Thereafter he got issued a Legal Notice-ExP3 through his counsel on 03.01.2015 to the Accused by RPAD, as per the postal receipts-Ex.P4. And the said notice was served on the Accused as per the postal acknowledgment- Ex.P5.
12. On the basis of the documents produced by the Complainant and the preliminary evidence led by the Complainant, the Trial Court has issued summons to the Accused U/Sec.204 of Cr.P.C., on 10 Crl.Appeal.No.25314/2019 04.06.2016. Perused the said orders, do not find any error in the said order of the Trial Court.
13. The Accused has appeared before the Trial Court on 16.09.2016 and he was enlarged on bail. Substance of Accusation/Plea was recorded, by the Trail Court on 09.10.2018. I have gone through the said Plea/Statement of Accusation recorded by the Trial Court. I do not find any error or irregularity in it.
14. Coming to the ocular evidence, on the point of issuance of the Cheque-ExP1, more specifically, cross-examination of DW.1, at Page No.3, Para No.2, Line Nos.1 and 2, which reads as under;
".... It is true that Ex.P1 cheque belongs to me. The signature at Ex.P1(a) is my signature. .....".
As per this evidence, the Accused /DW.1 admits that, the Cheque Ex.P1 belongs to him and signature found on the said Cheque also belongs to him.
14.01. As per the above ocular evidence, more specifically, the admission given by the Accused, it can be said that, the Accused has 11 Crl.Appeal.No.25314/2019 admitted that the Cheque-Ex.P1 belongs to him and the signature found on it also belongs to him.
15. Thus the Complainant has proved the initial burden casted upon him U/Sec.138 of N.I. Act, to show that, the Cheque-Ex.P1 belong to Accused and the signature on the said Cheque, is that of the Accused.
16. On viewing the amount of oral evidence with the documentary evidence i.e., Ex.P.1 to Ex.P.5, which will suffice the Complainant, to have benefit of presumption available U/Sec.138, 139 of N.I. Act.
16.01. As per the trite principle of law, dealing with the presumption U/Sec.138 & 139 of N.I.Act and as per the dictum laid down by the Hon'ble Apex Court in the case of K. Subramani V/s K. Damodara Naidu, reported in 2014 (12) SCALE 677, as well as in the case reported in (2010) 11 SCC 441, wherein it is held that, "Presumption U/Sec.139 of N.I.Act accrues to the benefit of the Complainant, unless the Accused rebut that presumption".
12 Crl.Appeal.No.25314/201916.02. Now it is for the Accused to rebut the said presumption, available to the Complainant U/Sec.139 of N.I.Act.
Hence, I answer POINT NO.1 IN THE
AFFIRMATIVE.
17. POINT NO.2:
The defence takenup by the Accused is that, the Complainant has stolen the Cheque and misused the same by filing the present Complaint. This line of defence can be seen as per the suggestions made to PW.1 on behalf of the Accused,
a) cross-examination of PW.1, at Page No.2, Para No.2, Line Nos.9 to 12, which reads as under:-
"... It is false to suggest that due to the close acquaintance with the Accused I used to sit in the shop of the Accused. It if false to suggest that under such circumstances, I have stolen one signed cheque from the shop of the Accused. ...."
b) cross-examination of PW.1, at Page No.3, Para No.1, Line Nos.1 and 2, which reads as under:-
"... It is false to suggest that I have misused thee stolen cheque and filed the false case against the Accused. ...."13 Crl.Appeal.No.25314/2019
On perusal of the above ocular evidence the Complainant has denied the said suggestions. Inview of such denial, it is for the Accused to prove existence of the fact, as suggested on his behalf to the Complainant/PW.1.
18. Though the Accused has contended so, but he has not produced any material on record to show that, the Cheque -Ex.P1 was stolen by the Complainant, like
a) filing of a Complaint by him against the Complainant, stating the fact of stolen of the Cheque;
b) issuing instructions to the banker for stop payment of the Cheque, on account of stolen of the Cheque;
c) filing of Complaint against the Complainant on coming to know about the misuse of the Cheque by him.
19. Coming to the ocular evidence, on this point, more specifically, cross-examination of DW.1, at Page No.4, Para No.2, Line Nos.1 to 6, which reads as under:-
14 Crl.Appeal.No.25314/2019"I came to know about the cheque and bouncing of a cheque when I have received the summons from the curt and at the time I came to know that my cheque has been misused. Subsequent to the knowledge of this case I have not lodged any complaint against the Complainant that his cheque has been misused. ...."
As per this evidence, Accused contends that, he came to know about the Cheque and its bouncing, only when he received the summons from the Court, as well as he came to know that, the said Cheque has been misused. But subsequent to his knowledge he has not lodged any Complaint against the Complainant for misusing his Cheque.
20. In the absence of any cogent and material evidence, to prove the existence of the fact stolen of Cheque by the Complainant, it is hard to believe the defence taken up by the Accused.
Hence, I answer POINT NO.2 IN THE
NEGATIVE.
21. POINT NO.3:-
The second defence taken up by the Accused that, the Complainant has not advanced any money to him. This defence of the Accused will be 15 Crl.Appeal.No.25314/2019 sustained only when the Accused proves his main defence that the Cheque-Ex.P1 has been stolen by the Complainant.
22. Considering the inconsistent contentions raised by the Accused in the cross examination of PW1 and his evidence as DW.1, it can be said that, the stands takenup by the Accused, is not fortified with cogent evidence, on the basis of preponderance of probabilities, inorder to rebut the presumption available to the Complainant, U/Sec 139 of NI Act. So, in the absence of material evidence, the different and distinct stands, taken up by the Accused, cannot be accepted at all.
23. Thus, the presumption available to the Complainant U/Sec. 139 of N.I. Act, has remained unrebutted, from the side of the Appellant/Accused. Hence, presumption available to the Complainant U/Sec.139 of N.I.Act stands unrebutted. I have gone through the Judgment of the Trial Court, more specifically, Para Nos.13 to 18. Rightly the Trial Court has concluded that, the Accused has failed to 16 Crl.Appeal.No.25314/2019 rebut the presumption available to the Complainant U/Sec.139 of N.I.Act.
HENCE, I ANSWER POINT NO.3 IN THE AFFIRMATIVE.
24. POINT NO 4:
Another defence taken up by the Appellant is that, he has not received the Notice-ExP3, issued by the Complainant by RPAD, to him.
The Complainant has produced Legal Notice at ExP3; Postal receipts at ExP4; and Postal AOD at ExP5. As per these documents, it is seen that, the Notice-ExP3 is issued to the Accused.
24.01. The Learned Counsel for the Appellant would contend that, the Notice-ExP3 is not received by the Accused. The said line of defence can be seen
a) as per cross-examination of PW.1, at Page No.4, Line Nos.11 to 14, which reads as under:
"... It is false to suggest that though I have received the demand notice issued at Ex.P3. I am falsely claiming that no notice has been served on me. ....".17 Crl.Appeal.No.25314/2019
24.02. As per the decision of the Hon'ble Apex Court, in the case of N Parameshwaran Unni Vs G Kannan and Anr, reported in (2017) 5 SCC 737, wherein it is held that, "Notice sent by Payee by Registered Post to the correct address of the drawer of the cheque. Postal authorities acknowledge service of notice. As per Sec 27 of General Clauses Act, service is deemed service.
Drawer entitled to rebut that presumption, but in absence of rebuttal, requirement of Sec 138 proviso (b) would stand complied with."So there exist a presumption of issuance of notice and receipt of it, unless contrary is proved.
24.03. Coming to the ocular evidence on this point, more specifically,
a) cross examination of DW1, Page No.3, Para No.1, Line Nos.13 to 16, which reads as under:
"... In the year 2014-15 I was residing at No.27/2, Nanjudeshwara Nilaya, Opposite to Anjaneya Temple, Nagawarapalya. I have vacated the said house in the month of April or May- 2015. ..."18 Crl.Appeal.No.25314/2019
b) cross examination of DW1, Page No.4, Para No.1, Line Nos.7 and 8 which reads as under:
"... It is true that I was residing in the address stated in Ex.P3 notice in the month of January-2015. ..."
c) cross examination of DW1, Page No.4, Para No.2, Line Nos.6 to 12, which reads as under:
"... It is true that in the letter now shown to me it has been endorsed as "as per our records the above RL No.RK184840248 in was delivered to the address on 05.01.2015'. It is true that there is a seal of sub Post Master with signature dtd.18.03.2016. It is true that RL Number found in Ex.P4 is the same number that has been shown to me in the aforesaid letter. ..."
As per these evidence, the Accused/DW1 admits that he was residing in the address stated in Ex.P3- Notice in the month of January-2015. Further admits that, as per Ex.P5 containing RL No.RK184840248 is delivered to his address on 05.01.2015, wherein seal of sub Post Master with signature is seen. Further the admits that the RL number found in Ex.P4 - postal receipt is the same number that has been shown to him.
19 Crl.Appeal.No.25314/2019As per this evidence, the Accused admits that, the address shown in Ex.P3 and Ex.P5, is his address. And he was residing their in the said address in the month of January-2015.
24.04. As per Sec. 27 of the General Clauses Act, which gives rise to a presumption that, service of notice is presumed to be affected, when it is sent to the correct address, by registered post.
24.05. Applying the said specific presumption to the instant case at hand, when the Complainant has shown that, the Notice-ExP3 is sent to the Accused, on his address, as found in it, under such circumstances, it is deemed that the Notice- ExP3 has been served to the Accused/addressee shown in Ex.P5- Postal AOD, which leads to presume/deem that the Accused is having the knowledge of the notice, unless the contrary is proved.
24.06. And when the Accused has challenged about receipt of the said Notice-ExP3, then the Accused has to show that, either the said 20 Crl.Appeal.No.25314/2019 Notice was issued to an incorrect address; or he was not residing on the address shown on Ex.P3 & ExP5, at the relevant point of time, which is within the knowledge of the Complainant, at the time of issuing the said notice.
24.07. When the Accused contends that, he was residing in the different address, at the time of issuance of Ex.P3-Notice, then it is for him to prove the said fact. But the Accused has not led any cogent and reliable evidence, to prove the said fact.
24.08. Thus, notice issued by the Complainant under Ex.P.3 is deemed to have been served upon the Accused, as per Ex.P.5-Postal AOD. I find force to my above view as per the decision of the Hon'ble Apex Court in the case of C.C. Alavi Haji V/s Palapetty Muhammad & Another, reported in (2007) 6 SCC 555.
24.09. Thus, the Appellant/Accused has failed to show on the basis of preponderance of probabilities that, the Notice-ExP3 issued to him, is not served upon him.
21 Crl.Appeal.No.25314/2019 Hence, I answer POINT NO.4 IN THE
NEGATIVE.
25. POINT NO 5:
Under these circumstances, there is no any hurdle to derive the presumption available to the holder of the cheque U/Sec.118 as well as U/Sec. 139 of N.I.Act. I find force to my above opinion as per the decision of Hon'ble Apex Court in the case of Hiten Pidalal V.s Bratindranath Banergi reported in 2001 Crl.L.J. 4647 (Supreme Court) as well as in the case of M.S.Narayan Menon @ Mani V/s State of Kerala and Another reported in 2006 SAR.Crl.616 and in the case of Krishna Janardhan Bhat V/s Dattatreya G. Hegde reported in (2008)2 SCC Crl. 166. Rightly, the Trial Court has considered all these aspect and there is no any fault on the part of the Trial Court. I do not find any force in the submission of the learned counsel for the Appellant.
26. Further the Statement of the Accused is recorded by the Trail Court U/Sec 313 of CrPC on 02.07.2019, it covers the entire incriminating 22 Crl.Appeal.No.25314/2019 substance, brought on record by way of evidence, against the Accused. The Trial Court has examined the Accused U/Sec. 313 of Cr.P.C. I have gone through the statement of the Accused recorded by the Trial Court U/Sec. 313 of Cr.P.C., and the reply given by the Accused, to the said questions, in the statement. I do not find any fault in the statement of the Accused, recorded by Trial Court U/Sec 313 of Cr.P.C.
27. I have carefully gone through the reasonings given by the Trial Court, while awarding compensation to the Complainant U/Sec.357 of Cr.P.C. I do not find any error or material irregularity in the said findings.
28. Further inorder to conclude, the Hon'ble High Court of Kerala has held in General Auto Sales Vs Vijayalakshmi, reported in 2005(1) KLT 478 in Paragraph No 8 thereof, that:
"Even if a blank signed cheque has been given towards liability or even as security, then the liability subsists and quantified, if the cheque is filled up and presented to the Bank, the person who had drawn the cheque, cannot avoid the 23 Crl.Appeal.No.25314/2019 criminal liability under Section 138 of NI Act".
28.01. Further the Hon'ble Apex Court has held in Rangappa Vs Sri Mohan, reported in (2010) 11 SCC 441, that;
"Once issuance of cheque and signature thereon are admitted, presumption of a legally enforceable debt infavour of the holder of the cheque arises. It is for the Accused to rebut the said presumption, though Accused need not adduce his own evidence and can rely upon the material submitted by the Complainant. However, mere statement of the Accused may not be sufficient to rebut the said presumption".
29. In this case, there was really presumption available infavour of the Complainant in terms of Section 138 & 139 of Negotiable Instruments Act, against the Accused and the Accused has not discharged his burden to rebut that presumption.
30. The Trial Court has considered all the aspects, the grounds taken up by the Accused, as defence. The Order of the Trial Court in awarding compensation to the Complainant, is also wel- reasoned.
24 Crl.Appeal.No.25314/201931. When no fault is committed by the Trial Court, in coming to the conclusion, convicting the Accused for the offence punishable U/Sec 138 of NI Act, interference to that effect, by this Court does not arise at all.
32. Thus, I am declined to interfere with the findings recorded by the Trial Court.
33. Necessarily the prosecution succeeds. The conviction is therefore confirmed, as the Accused is found guilty of the offence punishable under Section 138 of Negotiable Instruments Act. The Accused is hereby directed to pay the amount of compensation, as ordered by the Trial Court.
Hence, for the above reasons I am constrained to answer POINT NO.5 IN THE NEGATIVE.
34. POINT NO. 6:
For having answered Point Nos.1 & 3 in the Affirmative; and Point Nos.2, 4 and 5 in the Negative, I proceed to pass the following:25 Crl.Appeal.No.25314/2019
ORDER Acting U/Sec.386 of Cr.P.C., the Appeal preferred by the Appellant/Accused is hereby Dismissed.
In the consequences, the order of conviction passed by the Learned LVII Addl. CMM, Bengaluru in C.C.No.53479 of 2016, dtd.03.10.2019, recording conviction of the Accused, is hereby confirmed.
The order of suspension passed by this Court U/Sec.389 of Cr.P.C. stands revoked.
The Trial Court shall execute its order, as per law.
No order as to costs.
In case, if the Appellant/Accused has deposited the amount, as directed U/Sec. 148 of N.I. Act, the same may be dealt with, as per Law U/Sec. 143 of the said Act.26 Crl.Appeal.No.25314/2019
Remit the TCR to the Trial Court, on obtaining necessary acknowledgment, from it, alongwith the copy of this Judgment.
----
(Dictated to the Stenographer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me, in the open court on this the 27th day of January, 2022.) [Abdul-Rahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)