Bangalore District Court
B.S.Shreeharsha vs Capital First Ltd on 13 February, 2020
IN THE COURT OF THE LVIII ADDL.CITY CIVIL AND SESSIONS
JUDGE (CCH-59), BENGALURU CITY.
Dated this the 13th day of February, 2020
PRESENT:
Sri.Venkatesh.R.Hulgi, B.Com. LL.B (Spl.),
LI Addl. City Civil & Sessions Judge (CCH-52) &
C/c of LVIII Addl. City Civil & Sessions Judge (CCH-59),
Bengaluru City.
: CRIMINAL APPEAL NO.1754/2017:
APPELLANT : B.S.Shreeharsha,
Aged about 32 years,
Residing at No.774,
25th Cross, 53rd Main,
K.S.Layout,
I Stage, J P Nagar,
Bengaluru- 560 078.
(By Sri..C.C.N., Advocate)
-V/S-
RESPONDENT: Capital First Ltd.,
C-1, RPS Pride, 1st Floor,
20th Main Road,
KHB 5th Block,
Opp: Ganesh Temple,
Koramangala,
Bengaluru
Reptd. By its Sr.Manager,
Savitha S.Patil.
(By SA Associates, Advocate)
2 Crl.Apl.1754/2017
: JUDGMENT :
The appellant has filed this appeal under section 374(3) of Cr.P.C., praying for setting aside the judgment of conviction and order of sentence passed in C.C.No.300/2016 dated 16.11.2017 on the file of learned XXI Additional Chief Metropolitan Magistrate, Bangalore by allowing the appeal and to acquit the appellant.
2. The parties to the appeal hereinafter would be referred to as per their ranks assigned in the trial Court for the sake of convenience.
3. The facts of the case sufficient for disposal of the present case, if briefly stated are as under:-
That the complainant is the Public Limited Company engaged in the business of providing financial assistance to its customers having various branches at Bengaluru City. Accused is one of the customers of complainant's Company and had availed personal loan agreeing to repay the same in monthly installments. Subsequently, in discharge of the said liability accused had issued Ex.P.1 cheque dated 08/10/2015 in favour of the complainant. As the accused became chronic defaulter, the complainant has presented Ex.P1 3 Crl.Apl.1754/2017 cheque on 12/10/2015 for encashment. Unfortunately, the same was returned with endorsement "funds insufficient." The relevant endorsement is at Ex.P.3. Consequently, seeking repayment of the cheque amount the complainant has issued a legal notice to accused as per Ex.P4 through R.P.A.D. The said legal notice returned unserved with an endorsement that "intimation delivered on 29/10/2015". Ex.P.6 is the relevant postal cover. Despite the same accused has failed to comply the terms of the legal notice. Hence, the complainant has filed the complaint against the accused for the offence punishable Under Section 138 of N.I.Act.
4. The trial court took cognizance and registered a case and issued summons to the accused. In response to the court summons accused appeared before the Trial Court and he was released on bail. Accusation framed and read over and explained to the accused. The accused has pleaded not guilty and claimed to be tried.
5. In proof of his case, the complainant, examined its authorized representative as PW-1 and got marked Ex.P.1 to Ex.P.7 documents in evidence. The statement of accused under section
4 Crl.Apl.1754/2017 313 of Cr.P.C. was recorded. The accused has not adduced any evidence on his behalf.
6. After having heard the arguments of both sides and appreciating the oral and documentary evidence, the learned XXI Additional Chief Metropolitan Magistrate, Bengaluru City, by impugned judgment and order of sentence dated. 16.11.2017, convicted the accused for the offence punishable under section 138 of Negotiable Instruments Act and sentenced the accused to pay fine of Rs.70,000/- and further directed the appellant/accused to pay a sum of Rs.67,000/- as compensation out of the fine amount to the respondent/complainant and remaining sum of Rs.3,000/- was ordered to be remitted to the State. Thus, being aggrieved by the impugned order of the trial court, the appellant has filed the present appeal on the following grounds:
1) The order of the trial Court is totally perverse illegal, unlawful and not in accordance with law.
2) The impugned Judgment and conviction and sentence passed by the trial court is contrary to facts, materials and evidence placed on records and the same is liable to be set aside.
3) The learned Magistrate erred in placing much reliance upon the evidence of PW1, which is contrary to law and failed to see that issuance of 5 Crl.Apl.1754/2017 cheque is not at all admitted fact and therefore without corroborating the evidence of PW1 and in the special circumstances of this case for want of corroboration ought to have rejected the evidence of PW1.
On these grounds, the appellant has prayed to set aside the impugned order by allowing this appeal.
7. Respondent has appeared in response to the notice in appeal.
8. Trial Court records are secured.
9. Heard the arguments of both the sides.
10. The following points arise for my consideration:-
1. Whether the trial Court has committed error in convicting the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. Whether interference by this Court is necessary?
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3. What order?
11. My findings on the above points are as follows:-
POINT NO.1 - Negative;
POINT NO.2 - Negative;
POINT NO.3 - As per final order, for the following:-
: REASONS :
12. POINT NOS.1 AND 2: Since these points are inter connected to each other, hence, to avoid repetition of facts and evidence, these points are taken up together for common discussion.
13. In order to prove the complaint averments the authorized representative of the Complainant's Firm one Smt. Savitha S. Patil is examined as P.W.1. Ex.P.1 is the letter of Authorization issued in favour of P.W.1 authorizing her to give evidence in the present case.
14. In her evidence P.W.1 has sufficiently spoken about the loan transactions between the complainant and accused and 7 Crl.Apl.1754/2017 according to her as the complainant was one of the customers, hence personal loan was sanctioned to him. It is further stated that in due repayment of the loan, accused had issued Ex.P.1 cheque and the same was returned dishonoured when presented for encashment. Accordingly, the complainant has issued legal notice to the accused demanding repayment of the cheque amount. The R.P.A.D. cover returned with endorsement that "intimation was delivered on the addressee". Therefore, the present complaint is filed against the accused under section 138 of N.I.Act.
15. To substantiate the oral evidence of P.W.1, complainant has produced Ex.P.1 to P.7 documents. As mentioned above, Ex.P.2 is the cheque issued by the accused. It is not in dispute that the said cheque is belonging to the accused and it bears his signature as Ex.P.2(a). Ex.P.3 is the bank endorsement which indicates that Ex.P.2 cheque was dishonoured for funds insufficient. Ex.P.4 is the office copy of the legal notice issued to the accused to the registered address and Ex.P.5 is the postal receipt for having sent Ex.P4 through registered post. Ex.P.6 is the returned postal cover which goes to show that it was returned unserved as "intimation was delivered to addressee."
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16. P.W.1 has been cross examined at length by the learned advocate for the accused. In the cross examination it is admitted by P.W.1 that there is no mentioning the date of loan transactions between the parties and also the amount advanced as the loan. It is argued by the advocate for accused that the loan transaction is a fixatious loan transaction created by the complainant only to file the present complaint. Ex.P.2 was issued as the security for the previous loan transaction which was misused by the complainant to file the complaint. Hence, it is prayed to dismiss the complaint.
17. As noted above through out the evidence of P.W.1 accused has not disputed that ex.P.2 cheque is belonging to him and Ex.P2(a) is his signature. He has failed to lead cogent rebuttal evidence to prove how Ex.P.2 cheque has reached the hands of the complainant. There is no cogent evidence to show that Ex.P.2 was issued to the complainant as the security for the previous loan transaction and it was mis-used. Therefore as has been held by Hon'ble Apex Court in the case of Rangappa /vs/ Sri. Mohan (2010(Part 11) SCC 441) "The presumption in favour of complainant as required under section 139 of N.I.Act has to be raised. The Hon'ble Apex Court has held that "Once the cheque 9 Crl.Apl.1754/2017 relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as required under Section 139 of N.I.Act has to be raised by the Court in favour of the complainant. It is further held that "the said presumption is rebuttal presumption and accused is at liberty to led rebuttal evidence to rebut the said presumption. It is stated that the defence raised by the accused by way of rebuttal evidence must be probable and capable of being accepted by the Court."
18. In the present case, except making some suggestions to P.W.1 in her cross examination, nothing worth material is elicited in the cross examination of the P.W.1 to support the defence of the accused. The material available on record is not sufficient to rebut the said presumption. As per the ratio laid down in the above decision "the presumption mandated by Section 139 of N.I.Act includes a presumption that there exists a legally recoverable debt or liability." As per the decision of Hon'ble Apex Court in the case of Kumar Exports /vs/ Sharma Carpets (2009) 2 SCC 513 "The legal presumption literally means 'taking as true without examination or proof'."
10 Crl.Apl.1754/2017
19. The entire transactions between the complainant and accused is evidenced by Ex.P.7 extract of statement of loan account of the accused. It indicates that the payment made by the accused towards the loan account is deducted and finally the accused was due to the tune of Rs. 66,672/-. Therefore, for the said amount the cheque was issued. Accused has not led any evidence to indicate that the contents of Ex.P.7 are not true and correct. Hence the defence set up by the accused is not established with cogent evidence. In this way the accused has failed to rebut the legal presumption in favour of the complainant.
20. In its judgment impugned in the present appeal the Trial Court has considered the case of the parties in the light of available evidence on record and has rightly held that the complainant has proved the allegations made against the accused beyond doubt. Hence, the judgment and order of conviction of Trial Court impugned in the present appeal does not call for interference at the hands of this Court. Hence, for the reasons and discussions made above, I answer point Nos.1 and 2 in the "Negative".
21. POINT No.3: In view of my finding on point Nos.1 and 2, in the result, I proceed to pass the following:
11 Crl.Apl.1754/2017 : ORDER :
The appeal filed by the appellant under section 374(3) of Cr.P.C., is hereby dismissed.
The judgment and order passed by the learned XXI Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No. 300/2016 dated 16.11.2017 is hereby confirmed.
Send copy of this judgment along with LCR to the trial court forthwith. (Dictated to the Judgment Writer, transcribed by her, then corrected and pronounced by me in the open court on this the 13th day of February, 2020) (VENKATESH.R.HULGI) C/C of LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.
12 Crl.Apl.1754/2017 Judgment pronounced in the open Court ( vide separate order) : ORDER :
The appeal filed by the appellant under section 374(3) of Cr.P.C., is hereby dismissed.
The judgment and order passed by the learned XXI Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No. 300/2016 dated 16.11.2017 is hereby confirmed.
Send copy of this judgment along with LCR to the trial court forthwith.
(VENKATESH.R.HULGI) C/C of LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.
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