Bangalore District Court
Smt. K.R. Shashikala vs Aged About 46 Years on 10 April, 2023
1 Crl.A.No.512/2022
KABC010123582022
IN THE COURT OF THE LIX ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-60) AT BENGALURU
Dated this the 10 th day of April, 2023
-: P R E S E N T :-
Sri.SADANANDA NAGAPPA NAIK B.A.L, L.L.B.,
LIX ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-60, BENGALURU CITY.
CRIMINAL APPEAL No.512/2022
APPELLANT/ : Smt. K.R. Shashikala,
ACCUSED Aged about 46 years,
W/o. Sri. B.G.Rajanna,
R/at: House No.542,
12th Main, 8th Cross,
B.E.L. II Stage,
Bharath Nagar,
Bengaluru - 560091.
(By Sri Shamir A Naik, Advocate)
V/s.
RESPONDENT/ : Ramyashree.R.
COMPLAINANT Aged about 23 years,
D/o. Sri.B.G.Rajanna,
R/at: House No:448,
6th Cross, Gokula I Stage,
II Phase, Mathikere,
1st Main Road,
2 Crl.A.No.512/2022
Bengaluru North,
Bengaluru - 560 022
(By Sri VRB, Advocate)
J UD GM E N T
Appellant has filed this appeal U/s.374(3) of Cr.P.C., being aggrieved by the judgment of conviction and order of sentence passed in C.C.No.1686/2019 dated 19.03.2019 on the file of XIIAddl. Chief Metropolitan Magistrate, Bengaluru (hereinafter referred as impugned judgment and order).
2. Parties to this appeal shall be referred as per their ranking before the trial court for the purpose of convenience and for better appreciation of their contentions.
3. In the memorandum of appeal, the accused has contended that the judgment passed by the learned Magistrate contrary to law, facts, weight of evidence, probabilities of the case. The Trial court has committed grave error in convicting the accused. Trial court has convicted the accused based on only presumptions, surmises and conjectures. There is no chain of circumstances to convict the accused. Conviction is bad in law, improper, based on erroneous hypothesis and assumptions. The learned magistrate failed to consider 3 Crl.A.No.512/2022 that the accused has paid the cheque amount in cash before grandmother of complainant. Judgment is contrary to facts and circumstances of the case. The trial court failed to consider that the accused has given the cash in order to avoid the income tax. For the aforesaid reasons, the appellant has prayed to set aside the impugned judgment and order of conviction.
4. Along with memorandum of appeal, appellant produced certified copy of impugned judgment and order of conviction passed by the trial Court in C.C.No.1686/2019.
5. Respondent appeared through his counsel. Heard arguments. T.C.R. were called for reference in this appeal.
6. Now, following are the points arising for determination:
1. Whether appellant had sufficient cause for not preferring this appeal within the period of limitation?
2. Whether in the light of evidence and material brought before the court, trial court is justified in convicting accused/appellant for the offence punishable U/s.138 of N.I.Act and sentencing accused for the said offence?
3. Whether interference of this court is necessitated?
4. What Order?4 Crl.A.No.512/2022
7. It is answered for the aforesaid points as under:-
Point No.1: In the Affirmative.
Point No.2: In the Negative.
Point No.3: In the Affirmative.
Point No.4: As per final order below, for the following:-
R E A S ON S
8. POINT NO.1 : Perused the IA No.1 filed U/s.115(b)(ii) of Limitation Act, contents of affidavit filed in support of said I.A. In the affidavit, appellant has submitted that, he could not contact his counsel in time. There is no intentional delay in filing the appeal and the same is due to above mentioned chain of events and unavoidable circumstance.
9. Hon'ble Supreme Court in the case of Collector, Land Acquisition, Anantnag v. Katiji, reported at AIR 1987 SC 1353, held that the power to condone delay has been conferred in order to enable the Court to do substantial justice to parties by disposing of matters on merits. Applying the above said principles to present application, reasons assigned by the appellant to condone delay of 10 days in preferring this appeal is genuine. This court is of the opinion that to provide an 5 Crl.A.No.512/2022 opportunity to prosecute the appeal, I.A. deserves to be allowed. Hence, point No.1 is answered in the affirmative.
10. POINT NO. 2 & 3 :- These points are taken together to avoid repeated discussions.
Brief facts of the complaint is as follows:
Complainant is the daughter of husband of accused. Her mother Smt.K.Annapurna is the first wife of husbandof accused. Accused and her husband obtained release deed jointly in their favour and also in favour of her husband B.G.Rajanna and son Abhishek B.Raj registered on 20/11/2017 before Sub Registrar, Kunigal. Accordingly, complainant has released her right subject to payment of consideration amount of Rs.10,00,000/- payable equally by the accused and her husband. Towards discharge of same, accused issued cheque bearing No:053788 dated 20/11/2017 for a sum of Rs.5,00,000/- drawn on Syndicate Bank, Puttannachetty Road Branch, Bengaluru in favour of complainant. When the complainant presented the above said Ex.P.1 cheque, it was dishonored for the reasons "Funds Insufficient" vide memo dated 14/02/2018. The complainant issued legal notice to the accused on 09/03/2018 by way of RPAD and the said notice was returned as unclaimed on 22/03/2018. Hence, the 6 Crl.A.No.512/2022 present complaint is filed on 24/05/2018. Subsequent to execution of registered Release deed, accused has alienated the property in favour of several buyers. Therefore, the complainant filed the complaint against the accused/appellant U/s.200 of Cr.P.C. for the offence punishable U/s.138 of N.I.Act.
11. Perused entire order sheets, complaint filed U/s.200 of Cr.P.C., for the offence punishable U/s.138 of N.I.Act, examination-in-chief affidavit of the complainant, plea of accusation, contents of exhibited documents Exs.P.1 to P.6. There is no procedural defect of any nature while conducting trial relating to private complaint registered for the offence punishable U/s.138 of N.I.Act.
12. So far as appreciation of evidence is concerned, Complainant is examined as P.W.1. P.W.1 has reiterated averments of complaint in his examination-in-chief and also got examined one D.T.Chandra as PW 2. Ex.P.1 is the Cheque. Ex.P.2 is the Bank endorsement. Ex.P.3 is the Legal notice. Ex.P.4 is the Unserved postal cover. Ex.P.4(a) is the Notice in it. Ex.P.5 is the Certified copy of Release deed. Ex.P.6 is the Certified copy of sale deed. The complainant has deposed that the accused is the wife of her father. Complainant had got released her right in immovable property in favor of Accused and her 7 Crl.A.No.512/2022 husband. The accused had issued a cheque for the consideration amount. The same came to be dishonored upon presentation and accused has failed to pay the amount even after receipt of the notice. PW-1 has denied the suggestion that the Accused had given the two cheque as security and the same has been misused. Therefore, the complainant has successfully discharged initial burden of proof casts under Section 138 of N.I Act. Thereafter, burden shifts on the accused as per presumptions under Sections 118 & 139 of N.I Act in the form of reverse onus on the accused to rebut presumptions.
13. Accused appeared before the Court and he is enlarged on bail. He has specifically denied the liability to the complainant. It is contented by the accused/appellant that complainant has misused the cheque even after payment of amount by way of cash. Though the accused has examined himself as DW-1, he could not establish the case that the cheque which was issued for security purpose is misused. Further nothing has been elicited from the mouth of respondent that the said cheque was misused.
14. It is settled principle of law as held by House of Lords in Vickers Sons and Maxim Ltd., Vs. Evans (1910) AC 444 as quoted with approval by the Hon'ble Apex 8 Crl.A.No.512/2022 Court in Jamma Masjid, Mercara Vs Kodimaniandra Deviah and Others AIR 1962 SC 847 and reiterated in Shiv Shakti Co-operative Housing Society vs Swaraj Developers, AIR 2003 SC 2434 and in catena of decisions that the court cannot read anything into a statutory provision which is plain and unambiguous.
15. On bare perusal of the object of the Negotiable Instruments Act, it shows that the main object of the Chapter introducing dishonour of cheque on account of insufficiency of funds as penal offence in the Act is to enhance the acceptability of cheque. In order to attract the ingredients of Sec.138 of NI Act, the complainant needs to prove that the cheque drawn by a drawer of the cheque on an account maintained by him issued to the payee in discharge of any debt or other liability, cheque is presented to Bank within three months of the date of cheque and returned by the drawer bank as unpaid, complainant has made a demand for the payment of the said amount of money by giving a notice in writing within 30 days of receipt of information of dishonour by the Bank, and the drawer of such cheque has not made the payment of the said amount of money to the payee within fifteen days of the receipt of the said notice, then such person shall be deemed to have committed an offence and shall, without prejudice to any other 9 Crl.A.No.512/2022 provisions of the Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both.
16. It is well settled principle of criminal jurisprudence that a criminal trial proceeds on the presumption of innocence of the accused. An accused is presumed to be innocent unless proved guilty. It is the complainant/ prosecution to prove the guilt of the accused beyond reasonable doubt. However, in respect of offence under Section 138 of the Act, although there is a reverse onus clause contained in Sections 118 & 139 of the Act, the initial burden is on the complainant.
17. It is also a settled proposition of law that the standard of proof which is required from the accused to rebut the statutory presumption under Section 118 read with Section 139 of the Act is preponderance of probabilities. The accused is not required to prove his case beyond reasonable doubt. This onus on the accused can be discharged from the materials available on record and from the circumstantial evidences or even by admissions in the cross-examination of complainant and his witnesses.
18. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan 10 Crl.A.No.512/2022 reported in AIR 1999 SC 3762, the Apex Court held that once the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the N.I. Act can legally be drawn to infer that the cheque was made or drawn for consideration on the date which the cheque bears.
19. In Rangappa Vs. Sri Mohan reported in AIR 2010 SC 1898, a three judges' bench of the Supreme Court held that that once issuance of a cheque and signature thereon are admitted, presumption of a legally enforceable debt in favour 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. A post-dated cheque is a well recognized mode of payment.
20. In K.S. Ranganatha Vs. Vittal Shetty reported in 2021 SCC OnLine SC 1191, a three judges' bench of the Supreme Court held that once the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins 11 Crl.A.No.512/2022 on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. It is further held that the position of law makes it crystal clear that when a cheque is drawn out and is relied upon by the drawee, it will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount; such presumption of course, is rebuttable by proving to the contrary. The onus is on the accused to raise a probable defence and the standard of proof for rebutting the presumption is on preponderance of probabilities.
21. M/s. Kalemani Tax Vs. Balan (Crl.A.No.123/2021) (LL 2021 P.75) decided on 10.02.2021, a three judges' bench of the Supreme Court has observed that even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
22. Applying the above said principles to the present case and before considering the point whether accused succeeded to rebut presumptions and to establish his defence to the extent of probabilities, it is just and necessary to accumulate undisputed facts in 12 Crl.A.No.512/2022 this case.
23. It is not in dispute that complainant has executed Release deed dated 20.11.2017 relinquishing her right and accused has issued two cheques. It is not in dispute that bounced Cheque belongs to the bank account of the accused. It is also not in dispute that, signature appearing on the bounced Cheque is the signature of the accused. It is also not in dispute that, the cheque presented by the complainant came to be dishonoured by the banker of the accused for the reason stated in the dishonour memo.
24. To consider whether accused succeeded to rebut the presumption and established defence to the extent of probabilities, the accused though adduced his evidence as DW.1. It is the specific defence of the accused that in order to avoid I.T. problems, the accused and her husband have gone to the house of grandmother of complainant by name Jayamma at Mathikere and given an amount of Rs.10,00,000/- by way of cash and at that time the complainant and her grandmother have told that they have kept the cheques somewhere else and they will return the same after tracing it. However, on perusal of Ex.P.5 Registered Release deed, in the said deed, it has been recited that Rs.10,00,000/- consideration amount to be given by the accused and his 13 Crl.A.No.512/2022 wife in favour of complainant, in view of relinquishing of the right of the complainant over the three properties. If at all the above said amount of Rs.10,00,000/- was given, the same would have been reflected in the deed or at least some other documentary evidence could have been produced before this court that Rs.10,00,000/- has been given. Therefore, the contention of the accused that he has paid the cheque amount by way of cash cannot be accepted. If at all accused had paid Rs. 10 Lakh towards the cheque amount as per shara filed before the court on 7.12.2022, the accused would have informed the same at the time of reading over substance of accusation or at the time of Sec.313 statement. The same is not done by the accused. Therefore, trial court has rightly observed that Ex.P.1 cheque has been issued by the accused in favour of complainant for relinquishing of the right of the complainant over the property as per Ex.P.5 Release deed in favour of accused, husband of accused and son of accused. Therefore, the trial Court has rightly held that the accused has not rebutted the presumption arising under section 139 of N.I.Act.
25. In addition to that accused didn't produce any documents to show that, accused filed any complaint before jurisdictional police against complainant for misuse of his cheque. Accused did not produce any 14 Crl.A.No.512/2022 document to show that he filed private complaint before the jurisdictional Magistrate in this regard. Appellant/accused did not produce any documents to establish the fact that he has repaid the cheque amount to the complainant. On the other hand, the oral and documentary evidence adduced by the complainant, it is proved that the accused issued the cheque for legally recoverable debt.
26. This Court has compared reasons assigned by the trial court in the impugned judgment of conviction as discussed above with the allegations made in the memorandum of appeal. No grounds are made out in the memorandum of appeal to interfere with the Impugned judgment of conviction. The trial Court has rightly passed the judgment and order of conviction.
27. So far as quantum of punishment is concerned, fine of Rs.10,00,000/- (Rupees Ten Lakhs Only) was imposed for dishonor of cheque for Rs.5lakh. In default of payment of fine, accused was directed to undergo simple imprisonment for 1 year. Out of the fine amount, Rs.9,90,000/- (Rupees Nine Lakh Ninety Thousand Only) is ordered to be paid to complainant by way of compensation and Rs. 5,000/- Rs.10,000/- (Rupees Ten Thousand Only) to the State Exchequer. Fine amount imposed is within the purview of Section 138 of N.I. Act.
15 Crl.A.No.512/2022Appellant failed to show that sentence imposed is exorbitant. Accused/appellant failed to show that quantum of fine imposed is excessive. There is no merit in the appeal. Order under appeal is sustainable in law. Hence, interference of this court is not necessary. Accordingly, point No.2 is answered in the 'Affirmative' and point No.3 is answered in the 'Negative'.
28. Point No.4:- In view of findings on the above points No.2 & 3, this criminal appeal is devoid of merits and same is liable to be dismissed by confirming impugned judgment of conviction and order of sentence. Hence, following order is made:
OR D E R Invoking provisions of Section 386 of Cr.P.C., this Criminal Appeal filed U/s. 374(3) is dismissed.
Consequently, impugned judgment of conviction and order of sentence in C.C.No.1686/2019 dated 19.03.2019on the file of Court of XIIA.C.M.M, Bengaluru, is hereby confirmed.
Appellant/accused is hereby directed to appear before Trial Court to deposit the fine amount or to serve the sentence.
16 Crl.A.No.512/2022Office is hereby directed to send back T.C.R. along with certified copy of Judgment to the trial court, forthwith.
(Dictated to the Judgment-Writer directly on computer, script typed by her and corrected, signed and then pronounced by me in the open court on this 10th day of April, 2023) (Sadananda Nagappa Naik) LIX ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-60, BENGALURU CITY.
1 Crl.A.No.512/2022