Bangalore District Court
Mrs. Uma Bhasker vs W/O Mr. Bhasker on 6 May, 2019
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 6th day of May, 2019.
Crl. Appeal. No.25192/2018
Appellant/ Mrs. Uma Bhasker,
Accused:- W/o Mr. Bhasker,
Aged about 50 years,
R/at. No.5, Sabhapathy Line,
Kamaraj Road,
Bangalore-560 042.
[By Sri. M.Gangadharaiah-Advocate]
V/s
Respondent/ Mr. Venkatesh. J,
Complainant: S/o Jayaram,
Aged about 47 years,
R/at No.172, 7th Cross,
Kadirappa Road, Cox Town,
Bangalore-560 005.
(By Sri. SMS- Adv.)
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JUDGMENT
This Appeal is preferred by the Appellant U/Sec. 374 of Cr.P.C, being aggrieved by the Judgment and sentence passed by the LVIIth Addl. CMM, Bangalore in CC. No.55174 of 2014, dtd.01.10.2018, convicting the appellant for the offence punishable U/Sec. 138 of NI Act, sentencing her to pay fine of Rs.5,000/-. Indefault to undergo Simple Imprisonment for three months. Further directed to pay an amount of Rs.17,52,500/- to the Complainant as compensation U/Sec.357 of Cr.P.C. In default of the same to under go 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 well-known to him and since she requested an amount of Rs.1,00,000/- for clearing the mortgage on her property, he paid the said 3 Crl.Appeal.No.25192/2018 amount. Further the Appellant expressed her intention to sell her property to the Complainant so an additional amount of Rs.8,00,000/- were paid to her, by way of cash. Subsequently, the Appellant did not come forward to sell her property and she started dodging the Respondent for one or the other reason.
Thereafter the Respondent came to know that the Appellant has sold her property, he started insisting her to repay the said amount of Rs.9,00,000/-. The Appellant issued two cheques, one bearing No.087646 dtd.08.10.2012 for a sum ofRs.6,00,000/- drawn on the South Indian bank Ltd., Cantonment Branch, Bengaluru, and another cheque bearing No.295657 dtd.08.11.2012 for a sum of Rs.4,80,000/- drawn on the Indian Overseas Bank, Sivanchetty Garden Branch, Bengaluru. On presentation of both the cheques for their encashment, the same have been returned un-encashed with an endorsement "Funds Insufficient". Thereafter the Respondent has issued a legal notice to the Appellant. Thereafter the Appellant 4 Crl.Appeal.No.25192/2018 expressed her inability to pay the interest amount and further promised to pay Rs.9,00,000/- and she issued two fresh cheques bearing No.228583 dtd.15.06.2013 drawn on the Indian Overseas Bank, Shivanchetty Garden branch, Bengaluru, for a sum of Rs.4,50,000/-
and another cheque bearing No.228584 dtd.10.07.2013 drawn on the Indian Overseas Bank, Shivanchetty Garden branch, Bengaluru, for the sum of Rs.4,50,000/-. Both the cheques were presented for their encashment through his Banker Canara Bank, Cox Town Branch, Bengaluru. Again, the said cheques were returned unencashed with an endorsement "Funds Insufficient" on 21.06.2013 and 13.07.2013, respectively. The Respondent got issued legal notice dtd.18.07.2013, through his counsel to the Appellant, which the Appellant has received on 23.07.2012. After completion of the stipulated period since the Appellant did not pay the amount covered under both the cheques, the Respondent was constrained to file the present complaint.5
Crl.Appeal.No.25192/2018
3. On being satisfied, the Trial Court has issued summons U/Sec.204 of Cr.P.C. to the Accused on 11.08.2014. The Accused appeared before the Trial Court on 26.11.2015 and she was enlarged on bail. Plea was recorded by the Trial Court on 17.06.2016, wherein the Accused claimed to be tried.
4. The Complainant inorder to prove his case got himself examined as P.W.1 and got marked 12- documents as Ex.P.1 to Ex.P.12. Since the Learned Counsel for the Accused prayed time, prayer was rejected and cross-examination of PW.1 was taken as "no cross" on 17.01.2018.
5. On 20.01.2018, 313 statement of the Appellant was recorded by the Trial Court. The Trial Court heard the Appellant and the Respondent and has recorded the order of conviction, against the Appellant. Hence, the Appellant is before this Court, being aggrieved by the said Judgment of conviction. 6
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6. On filing of this present appeal, notice of appeal memo and I.A.No.1/18 was issued to the Respondent and the same was served on him. Respondent set in his appearance on 02.01.2019. Heard the learned counsels for the Appellant and the Respondent, respectively, on the appeal.
7. The Appellant has preferred this appeal on the following grounds:
Grounds of Appeal:
a) The Trial Court has failed to appreciate the facts and circumstances of the case in a perspective manner;
b) The Trial Court has grossly erred in holding that Accused has borrowed from the Complainant in the absence of any proof of evidence;
c) The Trial Court is wrong in holding that the Complainant has discharged initial burden as required under the Act;
d) The Trial Court has failed to afford reasonable opportunity to the present Appellant to lead her 7 Crl.Appeal.No.25192/2018 evidence in defence and to cross-examination the Complainant;
e) The Trial Court has failed to appreciate both oral and documentary evidence led by the Complainant.
f) The Trial Court has failed to observe that source and proof of income has not been proved by the Complainant.
g) The compensation awarded by the Trial Court is baseless.
Thus, the Trial Court has erred in recording the Order of conviction, against the Accused, which is required to be setaside by reversing it.
8. Following points arise for my consideration;
1. Whether the Appellant /Accused shows that the Order of Conviction and Sentence recorded by the Trial Court in C.C.No.55174/2014, dtd.01.10.2018 deserves to be setaside, and thereby call for the interference of this Court?
2. What Order?
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9. My finding on the above points are as under:
Point No.1 : Partly in the Affirmative; Point No 2 : As per final order for the following :
REASONS
10. Point No.1: The rank of parties will be referred as they were before the Trial Court.
As per the averments of the Complainant in the complaint, wherein it is contended that the Accused approached the Complainant requesting him to pay Rs.1,00,000/-, enabling her to repay the mortgage amount, for having mortgaged her property. On the said request, the Complainant paid an amount of Rs.1,00,000/- to the Accused. Thereafter, when the Accused expressed her intention to sell her property, the Complainant paid an amount of Rs.8,00,000/- to her. On having knowledge that the Accused has sold her property, he insisted her to repay the said amount of Rs.9,00,000/- for which the Accused issued initially two cheques for Rs.6,00,000/- and for Rs.4,80,000/-. On presentation of the said cheques, the same were 9 Crl.Appeal.No.25192/2018 returned unencashed with an endorsement "Funds Insufficient". Further as per the request of the Accused on receiving the demand notice to pay the amount under the said cheques, that she is not in a position to pay the interest, but only the principal amount for which again she has issued two cheques of Rs.4,50,000/- each to the Complainant. Again on presentation of the said cheques, they were returned unencashed, for the reason "Insufficiency of Funds" in the account of the Accused.
11. In this case, the Complainant has produced cheque bearing No.228583 dtd.15.06.2013, for Rs.4,50,000/- at Ex.P1, memo dtd.21.06.2013 at Ex.P2, cheque bearing No.228485 dtd.10.07.2013 for Rs.4,50,000/- at Ex.P3, memo dtd.13.07.2013 at Ex.P4, counter-file of the slip Ex.P5, legal notice dtd.18.07.2013 marked as Ex.P6, postal receipt at Ex.P7, for having sent Ex.P6 and postal acknowledgement at Ex.P8, letter dtd.27.07.2013 said to have been issued by the Accused is produced at 10 Crl.Appeal.No.25192/2018 Ex.P9, postal envelop for the said letter is produced as per Ex.P10, stamp paper Ex.P11, Certified copy of the Registered Sale Deed dtd.23.08.2010 at Ex.P12.
12. After recording of the plea of the Accused, the matter was posted for evidence. Since the Learned Counsel appearing for the Accused prays time to cross- examine PW.1, cross-examination of PW.1 was taken as no-cross on 17.01.2018. And the matter came to be posted for 313 statement on 20.01.2018. On 20.01.2018 313 statement of the Accused was recorded. The Learned Counsel for the Accused filed an application U/Sec.145 of N.I.Act and got recalled PW.1. PW.1 was cross examined on behalf of the Accused on 21.02.2018. Thereafter Complainant got recalled himself for his further examination in chief inorder to produce two documents and to get marked the same. Accordingly, further examination in chief of PW.1 was recorded on 14.03.2018. thereafter PW.1 was cross examined by the Learned Counsel for the Accused on 09.05.2018. Thereafter the matter came to 11 Crl.Appeal.No.25192/2018 be posted for defence evidence on 12.06.2018. Six adjournments were given for defence evidence and the matter came to be posted for arguments on 13.08.2018 and thereafter Judgment was passed on 01.10.2018. On careful perusal of the proceedings of the Trial Court, it can be seen that when the cross-examination of PW.1 by the Accused was taken as "No Cross" on 17.01.2018, the matter was posted for 313 statement. 313 statements is recorded on 20.01.2018. After recording 313 statement, Accused was permitted to cross examine PW.1, during the course of cross- examination PW.1 certain omissions were pointed out, inorder to fill the said omissions, PW.1 was recalled for his further examination in chief and further examination in chief of PW.1 was conducted on 14.03.2018, for which PW.1 was cross examined on behalf of the Accused on 09.05.2018. After cross- examination of PW.1, the matter came to be posted for defence evidence. First of all, statement of Accused U/Sec.313 is to be recorded after leading of the 12 Crl.Appeal.No.25192/2018 evidence within the meaning Sec.137 of Indian Evidence Act, by the prosecution i.e., by the Complainant. As the object of having the statement of the Accused U/Sec. 313 is to make aware the Accused about the incriminating substance against him, which has come on record by way of evidence. This aspect is missing in the proceedings. Thereafter again there was an opportunity to record the statement of the Accused U/Sec.313 after completion of cross-examination of PW.1 on 09.05.2018, which is not done. Recording of statement of the Accused U/Sec.313 of Cr.P.C., is not an empty formality, but it is a right of the Accused and it is one of the pillars of Criminal Jurisprudence to have fair trial of the case, which is not observed properly in this case.
13. The Learned Counsel for the Appellant would contend that if, the provisions of Sec.313 of Cr.P.C., were followed in its true spirit, the Accused would have led her defence, since the procedure, as required by law is not followed, it has caused great prejudice to the 13 Crl.Appeal.No.25192/2018 Accused, wherein the Accused has lost her, right to get herself defended, properly.
14. Learned Counsel for the Appellant would contend that the Appellant has denied the capacity of the Complainant to give Rs.9,00,000/- to the Accused. So also he has pointed out in the cross-examination of PW.1 at page No.3, para No.1, last but five lines and contended that the Complainant himself has admitted as to his capacity to pay the said amount. Under such circumstances, the Learned Counsel for the Appellant would contend that, it is for the Respondent/Complainant to prove his capacity for which he has placed reliance on the decision of the Hon'ble Apex Court, in the case of Basalingappa V/s Mudibasappa (Crl.Appeal.No.636/2019), arising out of SLP(Crl) 8641 of 2018, date of decision 09.04.2019; wherein it is held that; "when a probable defence is raised by the Accused challenging the financial capacity of the Complainant, it is for the Complainant to prove it, as the Court cannot insist on a 14 Crl.Appeal.No.25192/2018 person (Accused) to lead negative evidence." Further the Hon'ble Apex Court has summarized the Principles enumerated for the sake of Sec 118(a) and 139 of N.I. Act, in paragraph No.23, as under:
"23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarize the principles enumerated by this Court in following manner:-
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the Accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the Accused to rely on evidence led by him or Accused can also rely on the materials submitted by the 15 Crl.Appeal.No.25192/2018 Complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is no necessary for the Accused to come in the witness box in support of his defence, Sec 139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the Accused to come in the witness box to support his defence."
15. Further the Learned Counsel for the Appellant would contend that the story set up by the Respondent in the complaint that earlier two cheques were given for Rs.10,80,000/- , which were bounced, then subsequently inorder to repay Rs.9,00,000/-
again two cheques were given, which are in question in this case, speaks about a shrouded transaction with suspicion, which has been denied by the Accused in 16 Crl.Appeal.No.25192/2018 the cross-examination of PW.1. Further contends that the Trial Court has not at all taken into consideration all these aspects dealing with basic requirement of Sec.138 of N.I. Act, initial burden to be proved by the Complainant and thereafter the Accused is required to rebut the presumption available to the Complainant U/Sec.139 of N.I. Act, by affording an opportunity to the Accused, which has not been accorded.
16. The Learned Counsel for the Respondent would contend that, there might be mere irregularity in recording of the statement U/Sec. 313 of Cr.P.C., which can be got regularized by the Appellate Court, certainly having power to have the statement of the Accused U/Sec. 313 of Cr.P.C. Further he has placed his reliance on the decision of the Hon'ble Apex Court, in the case of Rohit Bhai Jeevanlal Patel V.s State of Gujarath & Another (Crl.A.No.508 of 2019, arising out of SPL. (Crl.) No.1883 of 2018, date of decision: 15.03.2019) wherein it is held in para No.11.1 as under:
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Crl.Appeal.No.25192/2018 "The principles aforesaid are not of much debate. In other words, ordinarily, the Appellate Court will not be upsetting the judgment of acquittal, if the view taken by the Trial Court is one of the possible views of matter and unless the Appellate Court arrives at a clear finding that the judgment of the Trial Court is perverse, i.e., not supported by evidence on record or contrary to what is regarded as normal or reasonable; or is wholly unsustainable in law. Such general restrictions are essentially to remind the Appellate Court that an Accused is presumed to be innocent unless proved guilty beyond reasonable doubt and a judgment of acquittal further strengthens such presumption in favour of the Accused. However, such restrictions need to be visualised in the context of the particular matter before the Appellate Court and the nature of the inquiry therein. The same rule with same rigour cannot be applied in a matter relating to the offence under Section 138 of N.I. Act, particularly where a presumption is drawn that the holder has received the cheque for a discharge, 18 Crl.Appeal.No.25192/2018 wholly or in part, of any debt or liability. Of course, the Accused is entitled to bring on record the relevant material to rebut such presumption and to show that preponderance of probabilities are in favour of his defence but while examining if the Accused has brought about a probable defence so as to rebut the presumption, the Appellate Court is certainly entitled to examine the evidence on record in order to find if preponderance indeed leans in favour of the Accused."
17. Further the Learned Counsel for the Respondent has relied upon the decision of the Hon'ble High Court of Bombay, Bench at Nagpur, in the case of Sukhdev V/s State of Maharastra (Crl.A.No.223 of 1992, date of decision 13.06.1996); wherein it is held that" Non compliance of requirement U/Sec. 313 is only an irregularity, if no prejudices is caused to the Accused, that by itself does not vitiate the trial".
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18. Looking to the object of Sec. 313 of Cr.P.C., which states that statement of the Accused is to be recorded inorder to give him an opportunity to explain any circumstances appearing in the evidence against him. Thus, the said statement is required to be recorded after completion of the prosecution evidence, which is not done in this particular case.
19. Considering the dictum laid down by the Hon'ble Apex Court, in the case of Basalingappa V/s Mudibasappa (referred to above) as well as in the case of Rohit Bhai Jeevanlal Patel V/s State of Gujarath & Another (referred to above). Of-course, the Appellant Court is certainly entitle to examine the evidence on record, provided that the Accused has brought the relevant material to rebut the presumption and to show that preponderance of probabilities or in favour of his defence, which in this case the Accused has not been given an opportunity, to bring the same, on record.
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20. It is also settled law that the parties to the complaint have a right to be fairly, adequately represented in a criminal trial. Even an Accused has a right to meet the case of the prosecution. It is also the duty of the Court to ensure that the principles of Natural Justice are not violated and the Complainant or the Accused, as the case may be, is to be afforded with a reasonable opportunity to get represented their respective cases. Fair trial is the main object of the criminal procedure and it is the duty of the Court to ensure that, such fairness is not hampered with or threatened in any manner. Keeping this object at the background, in the present set of facts, the Trial Court has failed to examine the Accused under Section 313 of Cr.P.C., after recording of complete evidence of the prosecution and has failed to afford proper opportunity to have her defence evidence.
21. Thus the approach of the Trial Court in the present set of facts, is totally incorrect and is in seer violation of the Principles of Natural Justice. 21
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22. Further on careful perusal of the Ordersheet, it is seen that neither the Court below has dispense with the recording of 313 statement of the Accused after completion of prosecution evidence i.e., on 09.05.2018. U/Sec 313 of CrPC, power is given to the Court to examine the Accused. The purpose of empowering the Court to examine the accused U/Sec 313 of Cr.P.C. is to meet the requirement of the principle of natural justice audi alteram partem (that no one should be condemned unheard). This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated against him and the Court must take note of such explanation. The scope of Sec 313 of CrPC is wide and is not a mere formality. The object of recording the statement of the accused U/Sec 313 of CrPC, is to put all incriminating evidence to the accused, so as to provide him an opportunity to explain such incriminating circumstances appearing against her in the evidence of the prosecution. The 22 Crl.Appeal.No.25192/2018 same is observed by the Hon'ble Apex Court in the case of Sanatan Naskar & Anr V/s State of West Bengal reported in AIR 2010 SC 3507.
23. Non examining the Accused U/Sec 313 of CrPC, is a threat to the dispensation of justice, under the Criminal Procedure. It is a material irregularity.
24. The matter is liable to be sent back, for its re-trail, by the Court below, with a direction to afford fullest opportunity to both the parties and to proceed in the matter, as per the dictum of the law, laid down by Hon'ble Apex Court in the case of Basalingappa V/s MUnibasappa as well Rohit Bhai Jeevanlal V.s State of Gujarath & Another (referred above).
25. The Trial Court has committed an error in dealing the matter, the findings and sentence of the Trial Court, culminated in recording the sentence of conviction against the Accused, deserves to be set aside. Hence, the same is set aside and the same is 23 Crl.Appeal.No.25192/2018 remanded for fresh trial, by giving opportunity to both the parties, as required by law.
For the above reasons, I am constrained to interfere with the Judgment passed by the Trial Court.
Thus, for the above said reasons, I answer point No 1 in the Partly AFFIRMATIVE.
26. Point No 2: For the aforesaid reasons, I proceed to pass the following;
ORDER:
Appeal preferred by the Appellant U/Sec 374 of CrPC., is hereby Partly ALLOWED.
In the consequences, the order of conviction recorded by the LVIIth ACMM, Bengaluru, in C.C.No.55174/2014 is hereby Set-aside.
Further without touching the merits of the case, the matter is remanded back to the Trail Court to retry the Accused, with a direction to readmit the criminal case, under its original number in the Register of Criminal Cases and proceed to determine the case, in accordance with 24 Crl.Appeal.No.25192/2018 law, without getting influenced by the observations made by this Court in this appeal.
Having due regards, parties are hereby directed to meet their own costs.
For the sake of convenience and to speed up the remedy, the Appellant and the Respondent is hereby directed to appear before the Trial Court on 20.05.2019, at the behest, by treating the same as notice and without anticipating any summons or Court notice, from the Trial Court.
Transmit consigned records to the Trial Court alongwith True copy of this Judgment, forthwith, without causing any delay by securing acknowledgment without fail, inorder to ensure delivery of records.
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(Dictated to the Judgment Writer 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 6th day of May, 2019) [Abdul-Rahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) 25 Crl.Appeal.No.25192/2018