Bangalore District Court
Sri.Jagan Mithra vs S/O. Late V. Govinda Rao on 11 January, 2016
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.CHANDRASHEKHAR MARGOOR, B.Sc., LL.B.(Spl)
LXVII ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Dated this the 11th day of January, 2016
Crl. Appeal No.1022/2014
APPELLANT/ Sri.Jagan Mithra
ACCUSED : S/o. Late V. Govinda Rao
Residing at No.134,
ARM Strong Road,
Above Kamakshi Digital Studio
I Floor, Shivajinagar,
Bengaluru-1.
(By Sri.M.Devaraja Advocate)
.Vs.
RESPONDENT/ Smt.Youginin Bai,
COMPLAINANT : Aged about 70 years,
Residing at No.80,
IV Cross, IV Main
Behind Vidyapeeta
T.R.Nagar
Gururaj Layout
BSK III Stage
Bengaluru-28.
(By Sri.S.S.K., Advocate)
JUDGMENT
The advocate for the appellant has preferred this appeal being aggrieved by the by the conviction judgment 2 Crl.Appeal No.1022/2014 passed in C.C.No.15087/2012, dated:19.08.2014 by the learned XII Addl. C.M.M., Bengaluru.
2. The appellant herein was the accused and respondent herein was the complainant before the trial court. For the sake of convenience, parties would be referred to by the ranks, they were assigned before the trial court.
3. Brief facts of the case of the complainant are as under;
The complainant and the accused are the relatives. The complainant had filed a suit in O.S.No.9021/2001 for partition against the accused and at the intervention of the well-wishers and family members, the said suit came to be compromised between the parties vide agreement, dated:21.11.2009. As per the said compromise, the accused has to pay Rs.3,00,000/- to the complainant and out of which, the accused had issued a cheque for Rs.1,00,000/- on 21.11.2009 and for the remaining amount, he had issued one post dated cheque bearing No.780522, dated:1.12.2010 for Rs.2,00,000/-. As the accused did not pay the cheque amount, the said cheque came to be outdated. Thereafter, after receiving the outdated cheque, the accused had issued a fresh cheque bearing No.856373, dated:1.09.2011 for Rs.2,00,000/- drawn on Bhavasara Kshatriya Co-operative Bank Ltd., Basavanagudi Branch, Bengaluru. When the complainant presented the said cheque for encashment through her 3 Crl.Appeal No.1022/2014 banker namely Corporation Bank, Basavanagudi Branch, Bengaluru, the said cheque came to be dishonored with an endorsement "Funds Insufficient" on 29.02.2012. Thereafter, the complainant got issued the legal notice, dated:21.03.2012 to the accused calling upon him to repay the cheque amount. The accused has replied on 05.04.2012 to the said notice with untenable reply. Hence, the complainant was constrained to file the complaint against the accused under Section 200 Cr.P.C. r/w. Section 138 of N.I.Act.
4. The learned XII Addl. C.M.M., Bengaluru, after taking cognizance and the same came to be registered as PCR No.8612/2012. The learned XII Addl. C.M.M., Bengaluru has recorded the sworn statement of the complainant and registered the case as C.C.No.15087/2012 and issued summons to the accused. The accused has appeared before the court and engaged his advocate and he was enlarged on bail. Thereafter, the plea was recorded and the accused pleaded not guilty and claims to be tried. Thereafter, the complainant was examined herself as P.W.1 and got marked documents Ex.P.1 to P.8. After the closure of the evidence of the complainant, the statement of accused U/Sec.313 of Cr.P.C., was recorded. The accused has denied the incriminating evidence of the complainant. The accused has adduced his evidence as D.W.1 and got marked the documents Exs.D.1 and 2. After hearing both the sides, the learned Magistrate has convicted the accused 4 Crl.Appeal No.1022/2014 for the offence punishable under Section 138 of the N.I.Act and sentenced him to pay a fine of Rs.3,70,000/-, in default, to undergo simple imprisonment for a period of 3 months and also ordered that, out of the fine amount, a sum of Rs.3,50,000/- shall be paid to the complainant as compensation and the balance of Rs.20,000/- shall be forfeited to the State.
5. Being aggrieved by the orders of the trial court, the appellant has preferred this appeal on the following grounds.
(1) The impugned judgment is not maintainable either in law or on facts and the same is liable to be set aside ;
(2) The trial court has not appreciated the evidence of the accused in proper perspective and hence, the impugned judgment is liable to be set aside ;
(3) The accused has rebutted the presumption under Section 139 of N.I.Act in favor of the complainant by leading cogent evidence, but the trial court has not appreciated the rebutted version of the accused ;
(4) The trial court has failed to appreciate the fact that since the allegations made by the complainant are civil in nature, ought to have dismissed the complaint of the complainant with a finding to approach the civil court ;
(5) The trial court has failed to appreciate the age of the ink used in the cheque as different kinds of ink have been used in filling up the cheque and under such circumstances, the 5 Crl.Appeal No.1022/2014 trial court ought to have referred the cheque for Expert's opinion.
Hence, on all these grounds, the appellant has prayed to allow the appeal by setting aside the impugned judgment passed by the learned XII Addl. C.M.M., Bengaluru in C.C.No.15087/2012, dated:19.08.2014.
6. The respondent put his appearance through his counsel. The lower court records were secured.
7. The appellant and respondent are absent and their counsels are also absent. Both the side have not canvassed their arguments. Hence, arguments taken as nil.
8. From the above facts, the points that arise for my consideration are as under:
1. Whether the appellant has made out grounds to interfere with the impugned judgment passed by the lower court?
2. What Order?
9. My findings on the above points are as follows.
POINT No.1 - In the Negative.
POINT No.2 - As per final order,
for the following :
6 Crl.Appeal No.1022/2014
REASONS
10. POINT No.1: The complainant and the accused are the brother and sisters. The complainant has filed O.S.9021/2001 on the file of City Civil Court, for partition and separate possession for seeking her share in the house property. The said suit came to be compromised on 21.11.2009 vide Ex.P.7. Wherein, the complainant has relinquished her share in the house property and the accused has agreed to pay Rs.3,00,000/- in lieu of her share. Accordingly, the accused has paid Rs.1,00,000/- Cheque drawn on Bhavasara Kshatriya Co-operative Bank Ltd., Cantonment Branch, Bengaluru dtd:21.11.2009 itself. The accused has issued post dated Cheque bearing No.780522 for Rs.2,00,000/- dtd:01.12.2010 drawn on Bhavasara Kshatriya Co-operative Bank Ltd., Cantonment Branch, Bengaluru. But, the said Cheque came to be out dated. Hence, the accused has issued another Cheque Ex.P.1 bearing No.856373 dtd:01.09.2011 for Rs.2,00,000/- Bhavasara Kshatriya Co-operative Bank Ltd., Cantonment Branch, Bengaluru. The complainant when presented the said Cheque, during last week of February 2012 for encashment through her banker Corporation Bank, Basavanagudi Branch, Bengaluru, but, the said Cheque came to be dishonored on 29.02.2011 for the reasons funds insufficient vide bankers endorsement Ex.P.2. The complainant got issued legal notice dtd:21.03.2012 vide Ex.P.3 through RPAD vide postal 7 Crl.Appeal No.1022/2014 receipt Ex.P.4 and called upon the accused to pay the Cheque amount within 15 days. The complainant has written letter to the postal agency to ascertain as to whether, the said registered letter is delivered to the addressee. Accordingly, the postal agency has replied to the said complaint vide its letter dtd:21.04.2012 vide Ex.P.5 stating that, registered letter was delivered to the addressee on 23.02.2012. The accused has replied untenably on 05.04.2012 to the complainant's notice. Hence, the complainant lodged the complaint under Sec.200 of Cr.P.C. r/w. Sec.138 of N.I.Act before the XII Addl. C.M.M., Bengaluru, which came to be numbered as 8612/2012 as the XII Addl.C.M.M., Bengaluru has taken cognizance. The complainant sworn statement was recorded and he ordered to register it as C.C.No.15087/2012 and issued summons to the accused and accused appeared before the court and engaged the counsel and he was enlarged on bail. The plea was recorded, he pleads not guilty and claims to be tried. The complainant came to be examined himself as P.W.1 and got marked documents at Ex.P.1 to Ex.P.7. The accused has suggested to the complainant that, the complainant has obtained the Cheque from the accused by wrong information and also forcibly. But the said suggestion was denied by the complainant. The said suggestion itself do go to show that, the accused has issued the Cheque to the complainant towards the compromise agreement Ex.P.7 which was filed in O.S.No.9021/2001, wherein, the 8 Crl.Appeal No.1022/2014 accused has agreed to pay Rs.3,00,000/- to the complainant in lieu of her share. The accused further suggested to the P.W.1 during the cross-examination that, the accused has filed O.S.No.26631/2012 on the file of CCH-29, Mayohall for cancellation of the agreement and also for the return of Ex.P.1 Cheque and the said suit is pending. But, the pendancy of O.S.No.26631/2012 on the file of CCH-29 will not come in the way of complainant for presentation of the Ex.P.1 Cheque.
11. The accused came to be examined himself as D.W.1 and got marked the documents at Ex.D.1 and Ex.D.2. He has stated in the deposition that, O.S.No.9021/2001 was filed in respect of house property bearing old No.89, New No.40. His father has bequeathed the said property in his favour by way of Will dtd:30.11.1993 vide Ex.D.1 and Ex.D.2. As the parties have entered in to an agreement vide Ex.P.7, the complainant has withdrawn the said suit and subsequently he has challenged Ex.P.7 in O.S.No.26631/2012. He has categorically admitted in the cross-examination that, Ex.P.7 agreement bearing his signature. He has further admitted that, he has given Rs.1,00,000/- by way of Cheque to the complainant while withdrawing the O.S.No.9021/2001. He further admitted that, he has not filed any suit to recover the said Rs.1,00,000/- from the complainant. He has admitted that, there is no whisper in the Ex.P.7 agreement about the execution of Will Ex.D.2. All these admissions of the 9 Crl.Appeal No.1022/2014 accused do go to show that, the complainant and accused have agreed to withdraw O.S.No.9021/2001 as the complainant was agreed to relinquish her share in the said property for Rs.3,00,000/- out of the said amount the complainant has received Rs.1,00,000/- by way of cheque on 21.11.2009 itself. The accused has also given another Cheque of Rs.2,00,000/- drawn on Bhavasara Kshatriya Co-operative Bank Ltd., Cantonment Branch, Bengaluru bearing No.780521 dtd:01.12.2010. But, the said Cheque came to be out dated. Hence, the accused has issued Ex.P.1 Cheque towards the legally recoverable debt by the accused to the complainant. Therefore, the complainant has complied all the provisions of Sec.138 of N.I.Act. The lower court has rightly convicted the accused for the offences punishable under Sec.138 of N.I.Act and imposed fine of Rs.3,70,000/- in default to under go simple imprisonment for 3 months and rightly awarded compensation of Rs.3,50,000/- to the complainant, out of the said fine amount. Therefore, interference of this court does not warranted. Hence, I answered the Point accordingly.
12. POINT No.2: In view of the finding on the Point No.1 as above, my finding on this point is as per following :
ORDER The Criminal Appeal filed by the appellant/accused is hereby dismissed.10 Crl.Appeal No.1022/2014
Consequently, the lower court Judgment passed by the XII Addl. C.M.M., Bengaluru in C.C.No.15087/2012, dated:19.08.2014 stands confirmed.
Send back the records to the lower court along with the copy of this judgment.
(Dictated to the Stenographer, transcribed by her, and after corrections pronounced by me in the Open Court on this the 11th day of January, 2016) (CHANDRASHEKHAR MARGOOR) LXVII Addl.City Civil and Sessions Judge, BENGALURU.