Bangalore District Court
In About 37 Years vs Ramachandra S/O K.V.Muniyappa on 15 April, 2019
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU
(CCH-61)
Dated this the 15th day of April, 2019
:Present:
Sri Vidyadhar Shirahatti, LL.M
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl. A. No. 417/2017, 418/2017 and Crl.A.No.419/2017
COMMON N.Rajesh S/o V.K.Nagarajachar, Aged
APPELLANT IN about 37 years, R/at No.2/15, 1st Main
THREE APPEAL road, Giddamma Layout, Akshnagar,
Dooravani Nagar, Bengaluru.
(Sri Bharath Kumar.V, Adv)
VS.
RESPONDENT Ramachandra S/o K.V.Muniyappa,
IN Crl.A.417/2017 Aged about 70 years, R/a No.690,
Lakshmi Venkatesh Nilaya,
Sri.Venkateshwara Theater Raod,
Devasandra, K.R.Puram,
Bengaluru.
(By Sri.O.R Adv )
RESPONDENT Smt. Susheela Devi W/o
IN Crl.A.418/2017 M.Ramachandra, Aged about 65
years, R/at No.690, Lakshmi
Venkatesh Nilaya,
Sri.Venkateshwara Theater Road,
Devasandra, K.R.Puram,
Bengaluru.
(By Sri.O.R Adv )
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RESPONDENT Nandhini Ramachadnra D/o
IN Crl.A.419/2017 M.Ramachandra, Aged about 34
years, R/at No.690, Lakshmi
Venkatesh Nilaya,
Sri.Venkateshwara Theater Road,
Devasandra, K.R.Puram,
Bengaluru.
(By Sri.O.R Adv )
COMMON JUDGMENT
These appeal filed u/Sec. 374(3) of Cr.P.C., by the
appellant, being aggrieved by the common judgment of
conviction and sentence passed in C.C.No.31972/2011,
C.C.No.20073/2011 and C.C.No.20074/2011, dt.28/2/2017
for offence punishable u/s 138 of N.I.Act on the file of XV
ACMM, Bengaluru.
2. The appellant was the accused in all the three cases
and respondents herein was the complainant respectively
before the trial Court and they are referred to as per the
ranks assigned to them before the lower court.
3. The brief facts leading to this appeal can be stated
as under:-
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On 24.12.2009 a sum of Rs.3,75,00,000/- was agreed
to be paid to the accused as part of sale consideration in
respect of an agreement between the accused and his wife
Smt.Dhanalakshmi on the one hand and the complainant, his
wife Susheeladevi and daughter Nandhini on other hand. In
this regard, a sum of Rs.30,00,000/- was paid on 24.12.2009
itself. The balance amount of Rs.3,45,00,000/- came to be
finally paid to the accused in April - May 2010 as per the
terms of the agreement dated:24.12.2009.
4. It is further case of the complainant that specific
agreement of sale and also some notarized documents have
been executed between the parties in respect of transfer of
immovable properties. There was an understanding between
the parties that properties should be free from all
encumbrance. But after that complainant realized that
properties agreed to be sold were not free from
encumbrances. Therefore, the complainant demanded the
return of amount paid to the accused. The accused has also
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agreed to refund a sum of Rs.3,75,00,000/- along with one
crore towards the damages. It is further contended that
accused has issued cheque for a sum of Rs.1,25,00,000/-
each on 18.2.2011 in favour of the complainant, his wife and
daughter. Cheque presented by the complainant was
dishnoured for reason "Exceeds arrangements/signature
differs" as per bank memo dt:12.3.2011. The other two
cheques presented by the wife and daughter of the
complainant also came to be dishnoured for the reason
exceeds arrangement/signature differs" as bank memos
dated 18.2.2011 and 21.3.2011. Then the complainants got
issued legal notice to the accused who neither replied the
notice nor repaid the cheque amount.
5. Then the complainant presented the complaints
under section.200 of Cr.P.C., for offence under Sec.138 of
Negotiable Instruments Act. Learned Magistrate took
cognizance and registered the case against the accused for
offence punishable u/Sec. 138 of Negotiable Instruments Act
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and secured the presence of accused who after appearance,
pleaded not guilty. Then the complainant examined himself
as PW1 and got marked documents as per Ex.P.1 to
Ex.P.29. After recording of statement of accused under
Sec.313 of Cr.P.C., the accused neither examined any
witness on his behalf. However, he got exhibited Ex.D1 and
Ex.D2 documents on his behalf.
6. The learned Magistrate on hearing the arguments
on both sides, found the accused guilty and proceeded to
convict the accused for offence u/Sec. 138 of Negotiable
Instruments Act and sentenced him to pay a fine of
Rs.3,76,000/- and in default of payment of fine amount, the
accused shall undergo S.I. for a period of one year. Besides,
the trial Court awarded compensation of Rs.3,75,50,000/- out
of the fine amount to the complainant acting u/s.357 of
Cr.P.C., by passing the impugned judgment dt.28/2/2017.
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7. This judgment of conviction and sentence which
is now under challenge by the appellant/accused on the
following grounds:-
The impugned judgment of conviction and sentence
passed by the trial court is opposed to the settled principles
of law, facts and probabilities of the case. The learned
Magistrate grossly erred in relying on Ex.P3, an unproved
notice, allegedly issued on behalf of accused in a different
context wherein it is alleged that complaint was not the
intended payee and further committed error of treating the
contents of such notice as an admission by the appellant.
The trial court has decided the case on hand on a wrong
assumption that the presumption attached to drawing of
negotiable instrument cannot be rebutted by the accused
without steeping into witness box. The trial court has not
made any reference to Ex.D1, Ex.D2 and Ex.D3 and to the
testimony of PW1 in that regard. The agreement of sale
creating the liability in question is not produced. The PW1 as
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the purchaser is unable to divulge about the manner, mode,
date and quantum of different payments under the alleged
contract of sale to the total of Rs.3,75,00,000/- The
complaint itself is not maintainable as there is delay in issuing
the demand notice as per Ex.P.2 and the notice issued within
30 days from the date of dishonour of cheque, but the
present case the notice was issued after 30 days of the
dishonour of the cheque. The complainant has not produced
any single piece of paper for having paid such a huge
amount. The complainant in his cross examination stated
that he got the said amount by selling more than 100 sites
out of his layout and he has paid the said amount to the
accused, but in this regard, the complainant has not
produced any documents to show that he sold the more than
100 sites to establish his source of income and financial
capacity to lend such a huge amount. He further contended
that, the mother of the complainant obtained a decree in
O.S.No.27266/2011 in respect of the properties sold a per
Ex.P.20, it clearly shows that, the complainant and her
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parents are holding properties in question and the said
properties are not defective titled. Hence, it is clearly shows
that there is no liability towards cheques in question are in
the name of complainant and her parents. As such the
complainant is compensated in that manner. The trial court
has not considered the same in the impugned judgment.
Further contended that, Ex.P.20 sale deed which the father of
the complainant fraudulently obtained by creating notarized
GPA and the accused lodged a complaint against the
complainant and her parents which is registered in
Cr.No.99/2011 before K.R.Puram police , as clearly goes to
show that, the conduct of the complainant. The trial judge
failed to consider the cheque in question was not issued for
discharge of debt or liability. The impugned judgment of
conviction is unsustainable and not tenable in the eye of law.
Hence, prayed to set aside the impugned judgment of
conviction and to acquit the accused by allowing the appeal.
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8. After filing of this appeal, notice duly served on
the respondent who made his appearance through a counsel.
The trial Court records, have been secured.
9. Heard arguments of learned counsel for
appellant and respondent.
10. Perused the records.
11. In the light of the contentions taken up in the
memorandum of appeals, the common points that arise for
my determination are as follows;
1) Whether the Court below erred in not
properly appreciating the defense set up by
the accused in proper perspective?
2) Whether the learned Magistrate erred in
convicting the appellant/accused for
offence punishable U/sec. 138 of
Negotiable Instruments Act?
3) Are there any grounds to interfere with the
order of conviction and sentence?
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4) What order?
12. My findings on the above points are as follows:
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : in the Negative
Point No.4 : As per final Order
REASONS
13. Point Nos.1 to 3:- All these points are taken
together for discussion for the sake of convenience and
to avoid repetition of facts.
14. I have carefully gone through the contents of
appeal memo, trial Court records and the impugned
judgment.
15. It is the specific case of the complainant that
accused received a sum of Rs.3,75,00,000/- as a part of sale
consideration in respect of agreement of between the
accused and his wife and complainants and in this regard,
the agreement of sale and also some notarized documents
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have been executed between the parties in respect of
transfer of some executed between the parties. It is the
further case of the complainant that since the cheques which
were issued by the accused came to be bounced back as
exceeds arrangements/insufficient funds, the accused is
liable to be convicted for offence punishable u/Sec. 138 of
Negotiable Instruments Act.
16. On the other hand, it is defense set up by the
accused that the cheques in question was issued to the
complainant, while borrowed a sum of Rs.30,00,000/- from
the complainant for his urgent business purpose and towards
security purpose as a collateral security and the father of the
complainant demanded the accused to execute a registered
sale agreement in respect of some properties, accordingly
the accused and his wife executed the registered sale
agreement in favour of the complainant and his family
members and also obtained some signed blank stamp
papers on demand promissory notes and three black
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cheques without signatures of the accused. Thereafter, the
complainant created the notarized GPA dt.30.8.2010 of the
accused and his wife on the blank stamp papers obtained at
the time of borrowing of the said amount. Very next day
1.9.2010 based on the said created GPA, the complainant as
a GPA holder of the accused executed the sale deed in
favour of his wife and daughter i.e.other complainants. After
coming to know about the said fact, the accused lodged the
complaint before the K.R.Puram police and the same was
registered as Cr.No.99/2011 against all the complainants.
Later B Report was filed by advising the both parties to
resolve the issue before the civil court. As such as on this
day the properties still standing in the name of his wife and
daughter and the present value of the said properties worth
Rs.7 crores. Instead of that the complainant by filling the 3
cheques as per his whims and fancies by forging the accused
signatures on cheque got bounced the same and filed the
present complaints and hence, he is not liable to pay the said
cheques amount.
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17. Keeping in view the rival contentions of both the
parties, I have carefully gone through the evidence let in by
both the parties to answer the points in controversy.
18. Obviously, the burden is on the complainant to
prove that the cheques in question were issued towards
discharge of legally recoverable debt or liability. In this
regard, the complainant in Crl.A.No.417/2017 examined
himself as PW1 in the three cases, who in his evidence has
reiterated the averments of the complaint and got marked
original cheques, memo issued by the bank, receipt, copy of
legal notice, postal receipt, postal acknowledgements postal
receipts, certified copy of FIR, certified copy of complaint
issued to the police commissioner, certified copy of B report,
certified copy of the notice issued to complainant, bank
statement of account, certified copies of two sale deeds,
khata extract, certified copy of two sale deeds, certified copy
of decree as per Ex.P.1 to 29..
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19. In the cross examination on behalf of the
accused, PW1 states that the accused received a
Rs.3,75,00,000/- from him under the agreement of sale and
when accused failed execute the said agreement of sale, for
repayment of the said amount, accused has issued cheques
in question. He has stated all these facts in his notice. He
denied the suggestion that the accused has issued to the
cheque towards security while he borrowed a loan of
Rs.30,00,000/- to meet his urgent necessities and he
misused the same.
20. A careful appreciation and evaluation of the
evidence of PW1 coupled with contents of Ex.P.1 to Ex.P.29,
makes it clear that the accused and complainant were known
to each other very well. Herein this case the accused does
not dispute issuance of cheques and his signature found on
the cheques in question. But it is his contention that, he has
issued the cheque in question to the complainant while he
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borrowed a loan of Rs.30,00,000/- from the complainant and
complainant has misused the same. He further contended
that, he has not received an amount of Rs.3,75,00,00/- under
the agreement of sale and hence, he is liable to pay the said
amount. But this contention of accused is not substantiated
by any material on record.
21. Further, if really the accused had issued said
cheques while he borrowed the loan of amount of
Rs.30,00,000/-, he would not have kept mum without insisting
complainant for returning the said cheques soon after receipt
of legal notice. That apart on the other hand the accused has
another contention that, the properties sold to the
complainant under Ex.P.20 is morethan worth of 7 crores,
which is still standing in the name of complainant's wife and
daughter and therefore, question of refunding Rs.3,75,00,00/-
does not arise at all. This contention of the accused clearly
goes to show that, he has admitted that he has received a
sum of Rs.3,75,00,000/- under the agreement of sale. As
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such the defense set up by the accused is not believable and
natural one.
22. Moreover, when the accused admits handing
over the same to complainant, the presumption under
Sec.139 of Negotiable Instruments Act would arise in favour
of the complainant.
23. In this regard I would like to rely upon the
decisions of Hon'ble Apex court in Kishna Rao v/s Shankar
Gowda in 2018(8) SCC 165
Financial loss Monterey loss - Negotiable
Instrument Act 1981- 139- presumption under 139 does
when may be fallen- ingredients and scope of Sec.139-
does not - probable summaries- accused liberty may
adduce evidence to rebut the presumption u/Sec.139-
but mere denial regarding existence of debt was not
serve any purpose in the event accused is able to raise
probable defense which creates doubt with regard to
existence of debt or liability presumption may fall.
24. In Rangappa Vs.Mohan in AIR 2010 SC 1898
wherein it is held that,
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The presumption mandated by S.139 of the Act
does indeed include the existence of legally enforceable
debt or liability. This is of course in the nature of
rebuttable presumption and it is open to the accused to
raise a defense wherein the existence of a legally
enforceable debt or liability can be contested. 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 the cheque, 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 offence made
punishable by S.138 can be better described as
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 settled position that
when an accused has to rebut the presumption under
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Sec.139, the standard of proof for doing so is that of
'preponderance of probabilities'. Therefore, if the
accused is able to raise. Therefore, if the accused is
able to raise a probable defense which creates doubt
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 defense and it is conceivable that in
some cases the accused may not need to adduce
evidence of his/her own.
25. Moreover, when the accused admits his signature
found on cheques and handing over the same to complainant
while borrowing loan amount, the presumption under Sec.118
and 139 of Negotiable Instruments Act would arise in favour
of the complainant. But the accused has not produced any
materials to rebut the said presumption. As such, no material
is produced appreciate the defense set up by accused with
regard. Therefore, the learned Magistrate has rightly
appreciated and evaluated the evidence of PW1 in proper
perspective. As such there is no any illegality or error
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committed by the Court below in appreciating the evidence
available on record.
26. On careful appreciation of evidence of PW1 and
the defense taken by the accused, it can be said that though
he states that the cheque in question was issued only as a
security, while he borrowing loan of Rs.30,00,000/-, his bald
say itself cannot be relied upon. Because, if really accused
has issued the said cheque towards security while he
borrowed a loan of Rs.30,00,000/-, he would not have left the
signed cheque in the hands of complainant. Moreover, the
accused has not offered any explanation as to why he left the
cheque in the hands of complainant. So, this aspect of the
case goes to show that defense set up by accused is not
probable. That apart, the accused taken contention that,
complainant by misusing the blank stamp paper power of
attorney is created by the complainant and sale deed was
executed as per Ex.P.20 is not probable, because as per
Ex.P29, the wife of complainant has obtained decree against
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the accused and his wife in O.S.No.27266/2011 in respect of
property sold as per Ex.P.20. That apart, as against the said
judgment and decree, the accused has not preferred any
appeal. Therefore, the contention of the accused is not
acceptable.
27. Having regard to all these facts and
circumstances, I am of the considered view that the learned
Magistrate has rightly appreciated the oral and documentary
evidence available on record in proper perspective. The
learned Magistrate committed no error or illegality in
appreciating and evaluating the documents relied upon by
both the parties. Herein this case, the accused failed to rebut
the presumption available in favour of complainant under
Sec.139 of Negotiable Instruments Act. A bald denial of the
case of complainant does not amount to a defense.
28. Furthermore, the accused has not replied the
legal notice which was issued to him. It appears from the
records that the notice was issued through registered post
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and which was duly served on the accused. It shows that his
action in keeping mum without replying the notice, goes to
show that he purposefully kept quiet since he issued cheques
towards repayment of loan amount. Further the accused
taken contention that, he has lodged the complaint against
the complainants as per Ex.P.14 and the after investigation,
the jurisdictional police have submitted the B report.
Admittedly the said complaint was lodged against the
complainant, only after presentation of the cheque to the
bank. That apart, the accused has not filed any protest
petition as against the said B report.
29. Herein this case, the accused admits that the
address shown in the legal notice, pertains to his residence.
Such being the fact, there is a deemed service of legal notice
on the accused, who neither replied the same nor paid the
cheque amount. Therefore, the complainant has placed
sufficient and ample materials on record to believe that the
cheque was issued by accused towards repayment of the
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amount of Rs.3,75,00,000/-, which accused has received
under the agreement of sale. There are no such
circumstances, wherein the case of complainant can be
doubted. There are no grounds so as to interfere with the
reasoning and findings of the Court below. As such the
learned Magistrate committed no error or illegality in believing
the case of complainant.
30. Having regard to the facts and circumstances of
the case, I am of the view that the impugned judgment of
conviction and sentence passed by the learned Magistrate is
in accordance with settled principle of law, facts and
probabilities of the case. Absolutely there are no grounds to
interfere in the impugned judgment of conviction and
sentence passed by the Court below. The impugned passed
by the Court below deserves to be confirmed with.
Accordingly, I answer point No.1 to 3 in the negatively.
31. Point No.4: In view of my findings on point No.1
to 3, I proceed to pass the following:
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ORDER
The appeal filed by appellant U/sec.374(3) of Code of Criminal Procedure is hereby dismissed.
The impugned judgment of conviction passed by XV ACMM, Bengaluru in CC No.20074/2011, C.C.No.20073/2011 and C.C.No.31972/2011 dt.28/2/2017 for offence u/s 138 of Negotiable Instruments Act is hereby confirmed.
The original of this judgment shall be keep in Crl.A.No.417/2017 and copies shall be thereof in Crl.A.No.418/2017 and Crl.A.No.419/2017.
Send a copy of this judgment to the lower Court along with LCR.
(Directly dictated to the stenographer on computer and then pronounced by me in the open court on this the 15th day of April, 2019) (Vidyadhar Shirahatti) LX Addl.City Civil & Sessions Judge, Bengaluru.
24 Crl.A.No.417/2017& Crl.A.No.418/2017 & Crl.A.No.419/2017 Common judgment pronounced in the open court. Vide separately ORDER The appeal filed by appellant U/sec.374(3) of Code of Criminal Procedure is hereby dismissed.
The impugned judgment of conviction passed by XV ACMM, Bengaluru in CC No.20074/2011, C.C.No.20073/2011 and C.C.No.31972/2011 dt.28/2/2017 for offence u/s 138 of Negotiable Instruments Act is hereby confirmed.
The original of this judgment shall be keep in Crl.A.No.417/2017 and copies shall be thereof in Crl.A.No.418/2017 and Crl.A.No.419/2017.
Send a copy of this judgment to the lower Court along with LCR.
*** (Vidyadhar Shirahatti) LX Addl.City Civil & Sessions Judge, Bengaluru.
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