Bangalore District Court
N.Manjegowda vs Security Guard on 10 February, 2015
IN THE COURT OF THE ADDL. SESSIONS JUDGE , FTC-X AT
BANGALORE.
DATED: THIS THE 9th DAY OF JULY, 2014
P R E S E N T:-
Sri. PATIL MOHAMMADGOUSE MOHIDDIN
B.Com, LL.B (Spl.).,
PRESIDING OFFICER,
FTC-X, BANGALORE CITY.
CRIMINAL APPEAL No.467/2013
BETWEEN:-
APPELLANT/ N.Manjegowda,
ACCUSED: Security Guard,
K.S.R.T.C. Sarige Bhavan,
K.H.Road, Shanthinagara,
Bengaluru - 560 027.
(By Sri.Parameshwara N.M. Adv.)
Vs.
RESPONDENT/ N.V.Prakash,
COMPLAINANT: S/o.Late. Venkatarayappa,
Aged about 43 years,R/at.No.104,
Block-II, KHB Colony, K.S.Town,
Bengaluru- 560 060.
(By Sri. K.N.Krishna Reddy, Adv.)
JUDG MENT
This is a criminal appeal preferred by the appellant/accused
against the respondent/complainant U/Sec.374 of Cr.P.C., being
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aggrieved by the impugned judgment passed by the learned XVI
ACMM., Bangalore, dated 19.8.2013 in C.C.No.11000/2009.
2. For the sake of convenience, the appellant and
respondent of the present case shall be referred with their original
status as referred in the Trial Court. The appellant is the accused
and respondent is the complainant before the trial court.
3. The brief facts of the prosecution case are that, in
the month of June 2008 the accused approached the complainant
and seeking financial assistance to the tune of Rs.1,10,000/- for
the purpose of domestic problems by agreeing to repay the same
within six months. Accordingly, the complainant has advanced
loan of Rs.1,10,000/- to the accused. Thereafter, the accused has
not repaid the loan amount as agreed within six months. When
the complainant approached the accused, the accused has issued
a cheque bearing No.317302 dated 28.1.2009 for a sum of
Rs.1,10,000/- drawn on Syndicate Bank, KSRTC Extn., Counter,
K.H.Road Branch, Bengaluru in favour of the complainant. When
the complainant presented the said cheque for encashment, the
same is returned with an endorsement "stopped payment" dated
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29.1.2009. Thereafter, the complainant issued legal notice dated
16.2.2009 as required U/s. 138 of N.I.Act. In spite of service of
notice, the accused has not repaid the loan amount within 15
days from the date of receipt of the notice. Hence, the accused
has committed an offence punishable U/s. 138 of N.I.Act.
4. On presentation of the complainant, the learned trial
court has taken cognizance against the accused for the offence
punishable U/s. 138 of N.I.Act and in pursuance of the summons
issued accused appeared before the trial court and got released
on bail.
5. The copies of the complainant's case have been
furnished to the accused as required U/s. 207 of Cr.P.C.
Thereafter, plea has been recorded against the accused for the
offence punishable U/s. 138 of N.I.Act to which the accused
pleaded not guilty and claimed to be tried.
6. In order to prove its case, the complainant himself
examined as Pw.1 and 3 witnesses as Pw.2 to Pw.4 and got
produced documents at Ex.P.1 to Ex.P.10.
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7. On completion of the complainant's evidence, the
statement of the accused as required U/Sec.313 of Cr.P.C., has
been recorded after giving an opportunity appearing in the
evidence of the complainant.
8. On the defence side the accused himself examined as
Dw.1 and got produced Ex.D.1.
9. On appreciating the oral and documentary evidence on
record and after hearing both sides, the trial court has convicted
the accused/appellant U/s. 255(2) of Cr.P.C., for the offence
punishable U/s. 138 of N.I.Act and sentenced the accused to pay
fine of Rs.1,15,000/- and if fine is realized, awarded Rs.
1,13,000/- as compensation to the complainant and ordered to
adjusted remaining amount of Rs.2,000/- to the State exchequer
and in default of payment of the compensation amount, the
accused shall under go simple imprisonment for six months.
10. The appellant/accused being aggrieved by the
aforesaid judgment of conviction and sentenced passed by the
trial court has filed this appeal on the ground that, the trial court
has committed grave error in taking the cognizance of the
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offence. Further, the trial court has erred in accepting and acting
upon the evidence of Pw.1 which is being inadmissible. The trial
court has not considered the defence taken by the
accused/appellant. The trial court has failed to consider the facts
that according to section 269SS of Income Tax Act any person
lent a loan more than Rs.20,000/- the person must pay the same
through cheque or Demand Draft. Hence, the trial court failed to
consider the law and facts applicable to the case. Hence, the
judgment of the trial court is illegal, incorrect, improper and has
resulted in miscarriage of justice. Hence, prays for acquitting the
accused by allowing this appeal and setting aside the judgment
of conviction and sentence passed in C.C.No.11000/2009 dated
19.8.2013 on the file of XVI A.C.M.M., Bangalore.
11. I have secured the trial court records and impugned
judgment passed by the trial court.
12. Heard the arguments of the learned counsels for the
appellant/accused and respondent/ complainant.
13. The following points that have arisen for my
consideration :-
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1) Whether the appellant has made out any
grounds warranting interference with the
judgment of conviction and sentence
passed by the XVI Additional Chief
Metropolitan Magistrate, Bangalore in
C.C.No.11000/2009 dated 19.8.2013 for
the offence punishable U/s. 138 of N.I.Act?
2) What order ?
14. My findings on the aforesaid points are as under :
Point No.1 :- In the Negative
Point No.2 :- As per final order, for the following :
REASONS
15. POINT NO. 1 :- Perused the lower court records and
impugned judgment passed by the trial court.
16. I have perused the evidence of Pw.1 to Pw.4 and
Ex.P.1 to Ex.P.10, evidence of Dw.1 and Ex.D.1.
17. The complainant who examined as Pw.1 in his
evidence has specifically stated that, the accused has availed
loan of Rs.1,10,000/- from him in the month of June 2008.
Thereafter, in discharge of the said loan, the accused has issued
cheque at Ex.P.1. On presentation the said cheque is
dishonoured with the bank endorsement as per Ex.P.2 "stop
payment". Thereafter, he issued legal notice as per Ex.P.3 calling
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upon the accused to repay the cheque amount within 15 days
from the date of receipt of the notice to which the accused has
falsely replied as per Ex.P.7. Accordingly, the accused has
committed the offence punishable U/s.138 of N.I.Act. Pw.2 to
Pw.4 have specifically supports the version of Pw.1 that, the
accused has availed loan of Rs.1,10,000/- from the complainant in
the month of June 2008 and thereafter, the complainant informed
them that, the accused has not ready to pay the loan amount.
Thereafter, the accused has issued the cheque as per Ex.P.1 to
the complainant in discharge of the said loan of Rs.1,10,000/-.
18. The accused put forth his defence that, in the month
of August 2012 when he was proceeding to his duties in a bus,
he was possessed two singed blank cheques bearing No.717301
and 717302 and the said cheques are lost in the bus and
thereafter the complainant might have found those cheques and
misutilized the same and filed false case against him. As soon as
the cheques lost, he issued notice to the bank 'stop payment' if
any cheques are presented. He did not know who is the
complainant and he never availed any loan from the complainant.
The complainant has filed false case.
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19. On going through the defence put forth by the
accused that as he lost two singed blank cheques it reveals that,
the signature appearing on Ex.P.1 is of accused. Keeping signed
blank cheques or issuing singed blank cheques itself is an
offence. The accused has not produced any documents to show
that, as soon as he lost the cheques as per own defence, he has
lodge any complaint before the jurisdictional police. It is not
defence of the accused that, the complainant after found the
cheque at Ex.P.1 colluding with his bank authorities got manage
to file the false case. If any person found a signed cheque
without knowing to whom the cheque is belonged, the said
person cannot misutilized the said cheque without colluding with
the bank authorities. The notice issued as per Ex.P.3 to the
address is of accused. The said fact is not disputed by the
accused. Unless and until the complainant knowing the accused
or colluding with the bank authorities, it is not possible for the
complainant to ascertain the address of the accused on the basis
of only signed blank cheques. Therefore, the issuance of the
notice as per Ex.P.3 to the correct address of the accused itself
show that, the accused deals with the loan transaction with the
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complainant and both knows to each other. Therefore, I have no
hesitation whatsoever to come to the conclusion that, the accused
has issued Ex.P.1 cheque to the complainant in discharge of the
loan of Rs.1,10,000/- and thereafter on presentation of the said
cheque, the same is dishonoured as per Ex.P.2/bank endorsement
i.e. 'stop payment' and thereafter on issuance of the notice as per
Ex.P.3 calling upon the accused to repay the cheque amount
within 15 days from the date of the receipt of the notice, the
accused has falsely replied as per Ex.P.7 by setting forth false
defence and thereby committed an offence punishable U/s. 138 of
N.I.Act. The accused has not rebutted the presumption as
required U/s. 139 of N.I.Act. The accused has not produced
cogent evidence to show that, really he has lost the Ex.P.1
cheque. Therefore, I have no hesitation whatsoever to come to
the conclusion that, the complainant has proved the guilt of the
accused beyond all reasonable doubt U/s. 138 of N.I.Act.
20. I have gone through the judgment of conviction and
sentence passed by the trial judge. By considering the evidence
available on record particularly Ex.P.1 cheque and defence put
forth by the accused has rightly come to the conclusion that, the
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accused has committed an offence punishable U/s. 138 of N.I.Act
and sentenced him to pay fine of Rs.1,15,000/- and out of
Rs.1,15,000/- awarded Rs.1,13,000/- as compensation to the
accused and Rs.2,000/- is to be deposited to the State
exchequer. In default of payment of compensation amount the
accused shall under go simple imprisonment for six months.
Therefore, I have no hesitation whatsoever to come to the
conclusion that, the appellant/accused has made out no grounds
to interfere with the judgment of conviction and sentence passed
by the learned XVI A.C.M.M., Bangalore in C.C.No.11000/2009
dated 19.8.2013. Accordingly, I answer point No.1 in the
negative.
21. POINT NO.2 :- In view of my findings on the above
point, I proceed to pass the following:
ORDER
The Criminal Appeal filed by the appellant U/Sec.374 of Cr.P.C., is hereby dismissed.
The judgment of conviction and sentence passed by the learned XVI Additional Chief Metropolitan Magistrate., Bangalore in C.C.No.11000/2009 dated 19.8.2013 is hereby confirmed.
Send back the L.C.R. forthwith.
11Crl.A.No.467/2013 (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 July, 2014.) (PATIL MOHAMMADGOUSE MOHIDDIN) PRESIDING OFFICER, F.T.C -X, BANGALORE CITY.
12Crl.A.No.467/2013 Orders pronounced in the open court. The operative portion of the same is extracted as hereunder:
O R D ER The Criminal Appeal filed by the appellant U/Sec.374 of Cr.P.C., is hereby dismissed.
The judgment of conviction and sentence passed by the learned XVI Additional Chief Metropolitan Magistrate., Bangalore in C.C.No.11000/2009 dated 19.8.2013 is hereby confirmed.
Send back the L.C.R. forthwith.
PRESIDING OFFICER, F.T.C -X, BANGALORE CITY. 13 Crl.A.No.467/2013