Bangalore District Court
Sri. Purushothaman. R vs The Federal Bank Limited on 25 June, 2019
IN THE COURT OF LXV ADDL CITY CIVIL AND SESSIONS
JUDGE; BANGALORE CITY
PRESENT:-
SRI. SUBHASH SANKAD
B.A., LL.M.
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 25th day of June, 2019
CRL.A.No.117/2016
PETITIONER/S :- SRI. PURUSHOTHAMAN. R,
s/o late Ramachandra,
Aged about 49 years,
R/at No.76/B, Ookadapalayam,
John Bull Street,
Viveknagar,
Bengaluru - 560 047.
(By Sri. SSK, Advocate)
V/s.
RESPONDENT/S:- THE FEDERAL BANK LIMITED,
A Banking Company having its
Registered office at ALUVA,
Kerala State and a Branch at
Koramangala,
Bengaluru - 560 095.
Rep. by its Senior Manager,
Mrs. Lalitha. R.
(By Sri. BAK., Advocate)
2 Crl.A.No.117/2016
JUDGMENT
The present appeal is filed by the appellant under Section 374(3) of Cr.P.C., seeking to set aside the Judgment and order dated 10.12.2015 passed by the learned XL Additional Chief Metropolitan Magistrate (Small Cause Court), Bengaluru, in CC.No.14917/2007
2. The appellant is the accused and the respondent is the complainant before the trial Court, for the sake of convenience parties are referred by their ranks before the trial Court.
3. The brief facts of the case are as follows:-
The case of the complainant is that the complainant bank is a registered company under the Companies Act and complainant bank is competent to file the complaint. The accused had availed loan from the complainant bank. After availing the loan, the accused had undertaken to repay the loan amount in monthly installments regularly, however the accused did not repay the loan amount and the accused towards part payment of the loan amount due by him issued a cheque bearing No.187232 dated 21.07.2007 for a sum of Rs.57,067/- drawn on State Bank of India, Jeevanbimanagar Branch, Bengaluru. The complainant 3 Crl.A.No.117/2016 bank presented the said cheque for encashment in bank and on 21.02.2007 the same was returned with an endorsement funds insufficient. Hence, the complainant bank having left with no other option got issued the legal notice to the accused on 26.02.2007 through RPAD calling upon the accused to repay the cheque amount within 15 days from the date of receipt of the notice and the same was duly served on the accused on 26.02.2007. Inspite of receiving the said notice, the accused neither repay the cheque amount nor replied the notice. It is further alleged in the complaint bank that the accused with dishonest intention and to cheat the complainant bank issued the cheque in question having knowledge about insufficient funds in his account and thereby committed an offence punishable under section 138 of Negotiable Instrument Act. Hence, the complainant bank filed the complaint before the trial court.
4. The trial court took cognizance of offence, recorded the sworn statement of the complainant and ordered for issuance of summons to accused. The accused appeared through his counsel and defended the case. The trial court recorded the plea of accusation. The accused pleaded not guilty of the accusation 4 Crl.A.No.117/2016 levelled against him and claimed to be tried. Hence, the case was posted for trial.
5. To prove its case, the complainant bank was examined its chief manager Mrs. Lalitha as PW1 and got marked the documents as Exs.P1 to 7. After completion of the evidence, the trial court examined the accused as required by Section 313 of Cr.P.C. The accused denied the incriminating evidence and he has not chosen to adduce defense evidence. The trial court passed the judgment convicting the accused and sentenced him to pay a fine of Rs.1,14,000/- i.e., double the cheque amount.
6. Being aggrieved by the judgment passed by the trial court, the appellant has preferred the present appeal challenging the legality, validity and correctness of judgment passed by the learned Magistrate on various grounds.
7. After presentation of the appeal, this court ordered for issuance of notice to the complainant. The complainant appeared through her counsel. The lower court records were secured. After receipt of the LCR, the appeal was posted for arguments. I have heard the argument of both the sides. 5 Crl.A.No.117/2016
8. I have gone through the lower court records, the impugned judgment of conviction and the grounds urged in the appeal memo.
9. In the light of the grounds urged in the appeal memo. The following points arise for my consideration:-
1. Whether the impugned judgment of conviction is opposed to the settled principles of law, facts and probabilities of the case?
2. Whether the appellant has made out any grounds to interfere with the impugned judgment of conviction and sentence?
3. What Order?
10. My findings on the above points are:-
Point No.1 :- In the Negative
Point No.2 :- In the Negative
Point No.3 : As per the final order
for the following :-
REASONS
11. Point No.1:- The complainant bank has filed private complaint against the accused for the offence punishable under Section 138 of the Negotiable Instrument Act, for the alleged dishonor of cheque issued by the accused towards repayment of loan amount of Rs.57,067/- obtained by him from the 6 Crl.A.No.117/2016 complainant bank. The trial court took cognizance of the offence, recorded the sworn statement of the complainant, and issued summons to the accused. After securing the accused, the case was posted for trial. The complainant bank was examined its chief manager Mrs. Lalitha as PW1 and produced the documents at Exs.P1 to 7. Thereafter, the accused was examined as required under Section 313 of Cr.P.C. The accused denied the incrementing evidence and he has not chosen to adduce defense evidence. The trial court convicted the accused for the offence punishable under Section 138 of the Negotiable Instrument Act, sentencing the accused to pay a fine of Rs.1,14,000/- in default of payment of fine amount directed the accused to undergo simple imprisonment for six months. The present appeal is filed challenging the said judgment and order.
12. After careful perusal of the lower court records, impugned judgment of conviction and the grounds urged by the appellant in the appeal memo, I proceed to answer the points in controversy.
7 Crl.A.No.117/2016
13. The burden is on the complainant bank to prove that the cheque in question was issued towards the discharge of legally recoverable debt or liability. It is the specific case of the complainant bank that the accused availed loan from the complainant bank and also undertaken to repay the loan amount regularly and issued cheque in question towards part payment of Rs.57,067/- which came to be dishonored on presentation. Hence, filed private complaint praying the trial court to take cognizance and punish the accused for the offence punishable under Section 138 of the Negotiable Instrument Act. In order to prove its case, one Mrs. Lalitha, Chief Manager examined as PW1. In her evidence, PW1 has reiterated the facts narrated in the complaint and got marked the documents as Exs.P1 to 7. Ex.P1 is the cheque, Ex.P1(a) is the signature of the accused, Ex.P2 is the bank memo, Ex.P3 is the copy of legal notice, Ex.P4 is the postal receipt, Ex.P5 is the UCP, Ex.P6 is the acknowledgment and Ex.P7 is the copy of GPA. I have gone through all the documents produced by the complainant. All the documents show that the accused had issued the cheque in question towards discharge of his legally recoverable debt. 8 Crl.A.No.117/2016
14. Now coming to the provisions of law, Sec.138 of N.I.Act has been enacted to provide stability and credibility to the financial transactions. The Main ingredients of the Sec.138 of N.I.Act as follows:
(1) Drawing up of cheque by the accused towards payment of an amount of money for the discharge, in whole or in part or any debt or any other liability.
(2) Return of the cheque by the bank as unpaid. (3) The drawer of cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso(b) to Sec.138 of N.I.Act.
The explanation appended to the section provides that, the 'debt or other liability' for the purpose of this Section means a legally enforceable debt or other liability.
15. Apart from this, Sec.139 of N.I.Act lays down a presumption in favour of the holder of cheque in the following terms.
"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature 9 Crl.A.No.117/2016 referred to in Sec.138 for the discharge in whole or in part, of any debt or other liability."
16. Also, Sec.118 N.I.Act states:- "Until the contrary is proved, the following presumptions shall be made:-
(a) That every negotiable instruments was made or drawn for consideration and that every such instrument, when it has been accepted indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration".
17. On careful perusal of Sec.139 of N.I.Act r/w Sec.118 N.I.Act, there is a presumption in favour of the complainant that the cheque was issued towards discharge of legally enforceable debt, the complainant has discharged his initial burden. Hence, the presumption goes in favour of the complainant.
18. The burden is now upon the accused to rebut the presumption available to the complainant and in order to rebut the presumption available to the complainant.
The appellant herein has relied on the cross-examination of PW1. The cross-examination of PW1 reads as follows; 10 Crl.A.No.117/2016
PW1 has admitted in her cross-examination that she has not worked in Koramangala Branch and there is a variation in the particulars of Ex.P7 and she does not know the executant of Ex.P7, since he is no more in service. She has further stated that she does not have personal knowledge about the case and she has deposed before the court on the basis of the documents. She has further admitted that she was not signatory at the time of filing of the complaint and one Mr. P.P. Thomas lodged complaint in this case as he was the Manager of Koramangala Branch. She has further admitted that she does not know as to how many cheques were collected by the bank from the accused and she does not know who has filled the cheque. She has further admitted that hand writing at Ex.P1 differs and she was not present when the notice at Ex.P3 was issued. She has further stated that she has not produced any document before the court regarding advancing the loan to the accused and his liability to pay the cheque amount to the bank. She has denied the suggestion that the accused has not availed the loan and he was not liable to pay any loan to the bank. As I have stated above in order to rebut the presumption available to the complainant. The accused has relied on the cross-examination of PW1. After 11 Crl.A.No.117/2016 careful perusal of the cross-examination of PW1, no doubt there are some admissions given by PW1 in respect of her lack of personal knowledge and the non-production of document etc., However except denying the case of the complainant the accused has not placed any materials before the court in order to rebut the presumption available to the complainant. After carefully going through the cross-examination of PW1 what I can infer is the accused has not taken any defense. It is his contention that blank cheque was given to the complainant for processing loan but no cogent and valid materials are produced to substantiate his defense. Further, the accused has received notice at Ex.P3. If at all his version is true, he would have replied to the notice and he has not replied to the notice. Except the denial there is no specific defense taken by the accused. Further more, the accused was examined as required under Section 313 Cr.P.C., and he was asked whether he wish to adduce evidence on his behalf, the accused has replied that he would adduce the evidence. The trial court adjourned the matter for defense evidence. Inspite of providing sufficient opportunities the accused did not lead any evidence, hence the trial court proceeded to take defense evidence nil, and proceed to pass the impugned 12 Crl.A.No.117/2016 judgment. The careful perusal of the entire materials available on record, I am of the view that the accused has failed to establish probable defense in order to rebut the presumption available to the complainant.
19. So far as the grounds urged in the appeal memo are concerned, the trial court has given sufficient opportunity to substantiate his case. The counsel for accused has cross- examined PW1 in length nothing beneficial to the case of the accused was elicited from the cross-examination of PW1. Under such circumstances, the grounds urged in the appeal memo are not supported by the cogent and valid documentary evidence. Hence, I am of the opinion that the trail court has rightly observed that the accused had issued cheque in question towards discharge of legally enforceable debt of Rs.57,067/-. Hence, on careful perusal of the lower court records and the impugned judgment of conviction, I am of the opinion that the trial court was rightly passed the judgment of conviction. The impugned judgment is in accordance with the settled principle of law and facts of the case. There is no error in the judgment passed by the learned Magistrate, and no grounds are made out by the 13 Crl.A.No.117/2016 appellant to interfere with the impugned judgment of conviction. Accordingly, I answer point No.1 in the 'Negative'.
20. Point No.2:- Now coming to the sentence part. The trial court has imposed sentence of Rs.1,14,000/- out of which Rs.1,10,000/- is ordered to be paid as compensation to the complainant and Rs.4,000/- is remitted to the state exchequer. Hence, I am of the opinion that, judgment of conviction and sentence passed by the trial court does not suffer from any irregularity and it does not call for any interference by this court. Accordingly, I answer point No.2 in the 'Negative.'
21. Point No.3:- In view of my findings on points No.1 and 2, I proceed to pass the following:-
ORDER The appeal filed by appellant under Section 374(3) of Code of Criminal Procedure is hereby dismissed.
The impugned judgment of conviction passed by the XL Additional Chief Metropolitan Magistrate (Small Cause Court), Bangalore, in CC.No.14917/2007 dated 10.12.2015 is hereby confirmed.14 Crl.A.No.117/2016
Send a copy of this judgment to the lower Court along with LCR forthwith.
(Directly dictated to the stenographer on computer, typed by her, corrected and then pronounced by me in the Open Court on this 25th day of June, 2019) (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.