Bangalore District Court
Sri. Ashok J. Walikar vs Lakshmamma on 19 November, 2021
1
Crl.A.No.1216/2019
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-56)
:Present :
Sri. Krishnamurthy R. Padasalgi,
B.Sc., LL.M., HDSE
LV Addl. City Civil & Sessions Judge,
Bengaluru.
Crl.A.No.1216/2019
DATE: THE 19TH DAY OF NOVEMBER 2021
APPELLANT :: Sri. Ashok J. Walikar,
Aged about 54 years,
Residing at No.941, 'Spoorthi Nilaya',
Vishveswariah Layout, 7th Block,
Muddina Palya Main Road,
Vishwaneedam Post,
Bengaluru-560 091.
(Rep. By Sri.U.S., Advocate)
-V/s-
RESPONDENT :: Lakshmamma,
W/o ramachandra,
Aged about 45 years,
Residing at No.8/1,
"Ranganath printers',
2nd Cross, Mallige Thota,
Cholara Palya, Magadi Road,
Bengaluru-560 023.
(Rep. By Sri.V.R., Advocate)
2
Crl.A.No.1216/2019
JUDGMENT
This is an appeal under Section 374(3) of Cr.P.C. by the appellant/accused being aggrieved by the judgment and order passed by learned XII A.C.M.M., Bengaluru City in C.C.No.27799/2015 dated 11.03.2019 for convicting him for the offence punishable u/Sec.138 of N.I. Act sentencing him to pay compensation of Rs.11,95,000/- to complainant/respondent with fine of Rs.5,000/- to state in default simple imprisonment for 6 (six) months.
1. The parties will be referred as per the Rank before the trial Court.
2. The facts of the case of complainant are that, the complainant is working as a school teacher and her husband is running printing press. They are having 3 issues. Out them, one of her daughter by name R.Gunaswetha had completed her B.E. in Civil Engineering and searching for job. Such being the case, in 2014 the complainant's friends by name one Prakash and Sathya 3 Crl.A.No.1216/2019 Murthy who are also teachers, have introduced the present accused and stated that the accused is a Professor doing social work and he will be able to obtain a job to the complainant's daughter. On account of that, believing that the accused has got various known persons in Central and State Government Departments and through his influence the accused has obtained jobs to several persons in so many departments, as such, the accused assured the complainant that he will get a job for her daughter in BEML Factory. On accused of the well cordial relationship with the complainant's family members, the accused stated about getting job in BEML company,, which requires about Rs.12 to 15 lakhs for various expenses and further he promised that if they paid so much of money to him then the accused will get the job to complainant's daughter on or before November 2014. Believing on the words of the accused and the assurance made by the accused, the complainant and her husband have arranged money from various sources by pledging her golden ornaments and mortgaging her house and obtained money from various friends and paid the said amount in three installments i.e., on 28.8.2014 a sum of Rs.2 lakhs, 4 Crl.A.No.1216/2019 on 10.9.2014 a sum of Rs.8 lakhs, on 20.10.2014 paid Rs.2 lakhs by way of cash, totally they had paid Rs.12,00,000/- to the accused by way of cash. After receiving the said amount from the complainant and her husband, the accused sent mails and Government letters to the complainant and her daughter and created a belief in the complainant and her daughter's mind that the accused is going to get job in BEML Factory. After giving such assurance, for one or the other reasons he was postponing the matter for appointment of complainant's daughter. Then the complainant came to know the attitude of the accused as there was no progress shown by him as promised by him, then the complainant and her husband without having any alternative, they have demanded for repayment of the said amount and they have visited the house of the accused in the first week of July 2015 and they have demanded their money. At this juncture the accused showing several difficulties in getting the job and he had agreed to return back the money and he issued 2 cheques bearing No.324007 dated 9.7.2015 for Rs.6 lakhs and another cheque bearing No.324008 dated 7.7.2015 for Rs.6 lakhs, both drawn on Syndicate Bank, Dr.Ambedkar Institute of 5 Crl.A.No.1216/2019 Technology, Nagarbhavi Branch, Bengaluru. The accused had assured that the said cheques will be honoured. On 21.7.2015 as per the assurance made by the accused, the complainant presented both the cheques through her banker Canara Bank, Chamarajpet Branch, Bengaluru on 21.7.2015, but both the cheques were dishonored with an endorsement as "Payment stopped by the drawer" on 22.7.2015. The said fact was informed by the complainant to the accused, but he has not responded. Then the complainant got issued legal notice on 10.8.2015 by RPAD as well as by courier. The legal noticed issued under RPAD returned with a shara "Unclaimed, intimation delivered, door locked". Whereas the legal notice sent through courier was duly served upon him. In spite of receipt of legal notice, he has neither repaid the said amount nor gave any reply. Hence, service of notice also accused have not paid the cheques amount. Thereby the accused persons have committed an offence punishable under Section.138 of negotiable Instruments Act. Hence, the complaint was filed.
3. The trial Court after taking cognizance issued the summons, 6 Crl.A.No.1216/2019 the accused appeared enlarged on bail, plea was read over. The complainant was examined as P.W.1 and got marked 13 documents as Exs.P.1 to Ex.P.13 and accused was examined u/Sec.313 of Cr.P.C. and its answers were recorded, the accused examined one witness as DW1 and got marked EX.D 1 to Ex.D.6. The learned magistrate after hearing both passed the impugned order.
4. The appellant/accused has following ground for the appeal.
"Grounds for Appeal."
That impugned judgment is opposed to law, facts and materials. It is settled principle that initial burden to prove that there is legally recoverable debt is on the complainant,. The trial court has gravely erred in taking cognizance of the offence under Section 138 of NI Act. The trial court has lost sight of averments made in the complaint, wherein no materials are made out. No evidence of witnesses Sri.Satyamurthy and Prakash, who happens to be introduced the appellant to the respondent Lakshmamma saying that the appellant is capable of getting a job for her daughter for Rs.12 lakhs. There are no eye witnesses. No documents have 7 Crl.A.No.1216/2019 been produced with respect to 'job' around which the entire case revolves such as notification, application and details of the job etc. The trial court has come to the wrong presumption about the appellant and created its own version to form basis for the impugned judgment. The trial court outrightly rejected the signature verification letter issued by the Syndicate Bank on 24.05.2018 and also rejected the CCTVs footage pertaining to the illegal interference of the police in the uniform without FIR and without any complaint, who visited to extract money from the appellant / accused, repeatedly and threatened of dire consequences if not obeyed the respondent. Hence, prays to allow the appeal.
5. After issuance of notice respondent i.e., complainant appeared. The trial court records were secured. Heard counsels for the appellant and respondent. Written arguments were filed on behalf of appellant, Perused.
6. Based on the above points are that arise for consideration;
1. Whether the appellant/accused proves that the cheque at Ex.P1 and P2 in question for Rs. 6 8 Crl.A.No.1216/2019 lakhs each dated 07.07.2015 and 09.07.2015 respectively were not issued for any legally enforceable debt?
2. Whether the appellant proves that towards the discharge of legal enforceable debt issued cheques baring No. 324007 dated 09.07.2015 and cheque bearing No.324008 dated 07.07.2015 both for Rs. 6 lakhs each drawn on Syndicate Bank, Dr.Ambedkar Institute of Technology, Nagarabhavi Branch, Bangalore were dishonored and despite of receipt of notice an expiry of statutory time he has not repaid the same and committed offence punishable under Section 138 of N.I. Act?
3. Whether the judgment and sentence passed by the trial Court requires interference by this Court?
4. What order ?
7. The above points are answered as under:
Point No.1 : Not answered Point No.2 : Not answered 9 Crl.A.No.1216/2019 Point No.3 : In the Affirmative Point No.4 : As per final order for the following.
R EAS ON S
8. POINT No.3:: The appellant in person has filed written arguments. By going through his written arguments, he has contended that the contention of the respondent / complainant that the appellant would influence BEML and secure employment for daughter of the complainant by name R.Gunaswetha who has completed B.E. is false. There was no job Notification in BEML. He has also denied that Rs. 12 lakhs were collected by him. The claim of the complainant for giving bribe money to get the Government job amount was collected by the appellant is baseless and fraudulent. As per Mahazar the husband of the complainant admitted that only Rs. 12 lakhs was given to appellant through Prakash and also contends that no documents are produced and by the complainant / respondent produced any evidence and no notice in terms of Sectoin 269 SS of Income Tax Act are produced. The complainant / respondent has given statement in the crime of Magadi Road PS and admitted that her friend Satyamurthy and 10 Crl.A.No.1216/2019 Prakash were not present when the money was given to appellant. He further argued that cheques were without signature and were obtained by the respondent under coercion of the police Interference. The appellant for such act of police gave written complaint on 17.09.2015 and police have issued NCR on 18.09.2015. Hence, PCR was filed before the CJM, and FIR was registered in Cr.No.536/2015. When the B-Report was filed the same was challenged. It is also contended that two counter cases are filed, one in Magadi Road PS under Section 34, 406, 420 of IPC in C.C.No.15157/2016 by the husband of the complainant and this complaint. He also contends that as per provisions of NI Act illegally obtained cheques and illegal consideration and forbidden. The appellant also contends that as per Section 23 of Contract Act, which prohibits every agreement of which the object or consideration are unlawful against the public policy. Hence, the alleged consideration amount given for bribing Government officials to obtain job is not legally enforceable. The trial court has passed its judgment on unconnnected irrelevant mattes. The mandatory provision of Section 210 of Cr.P.C. are overlooked. 11
Crl.A.No.1216/2019
9. Appellant pointed out copy of PCR No. 536/2015 registered in Tavarekere PS filed by the appellant herein and also B-Final report and also copy of FIR field by the husband of the respondent in Cr.No.285/2015 of Magadi Road PS with complaint and all statement and contends to set aside the judgment of conviction and sentence. The counsel relied upon the decision in Criminal Appeal No. 425 of 2000 - NAVNEETDAS NARAYANDAS BARSHIKAR VS. BACCHUBHAI MULJI TANNA, wherein it is held that it is incumbent upon the complainant to prove and establish beyond reasonable about about legally enforceable debt. He also relied upon the reported decision in Crl.P.No.1387/2011 - R. PARIMALA BAI VS. BHASKAR NARASIMHAIAH with respect to no allegations in the complaint about existence of legally enforceable debt Section 138 of NI Act is not applicable. He further relied upon the ruing reported in 2013 CRL.L.J. 2681 - SMTI. DELSINORA DYMPEP VS. SMTI. HASINA KHARBHIH AND OTHERS with respect to Section 210 of Cr.P.C. and also relied upon the ruling reported in AIR 1979 MADRAS 42 - N.V.P. PANDIAN VS. M.M. ROY with respect to public policy.
12
Crl.A.No.1216/2019
10. Having regard to the above arguments and materials produced the first and foremost question that is to be looked into by the court is whether the cheque in question was issued for payment of legally enforceable debt as per the decision in Crl.P.No.1387/2011 detailed discussion is made in his regard.
11. Now to consider the impugned judgment, by perusal of the judgment, the trial court has not at all considered whether cheques in question were issued for discharge of legally enforceable debt or not. The cheques in question which are at Ex.P1 and P2 no such point is raised in point No.1 by trial court. The trial court simply reproduced the evidence of PW 1 at length without appreciating the evidence and in a last page cursory observation is made that the accused has issued Ex.P1 and P2 cheques for legally recoverable debt. But not at all scrutinized or appreciated the evidence, but has made certain observations with regard to non-requirement of drawer of cheque as to take precaution and mode in which the evidence has to be adduced.
12. In page No.16 a cryptic observation is made, conduct of the parties which was not required rather than giving findings with 13 Crl.A.No.1216/2019 regard to oral and documentary evidence, whether cheques were issued for legally enforceable debt or not. The trial court has only considered the fact that he complainant has played fraud and he is not laymen and he has not denied that the complainant is having daughter and he taken money.
13. In this case Ex.P9 is the FIR registered by the Basaveswaranagar PS under Section 406, 420, 504, 506 of IPC against the accused by one Nagesh. Ex.P10 is copy of the same. Ex.P11 is the charge sheet of that case. The relevancy of the document is not at all discussed.
14. The accused who is examined himself as DW 1 has produced endorsement given by Tavarekere Police and private complaint filed by him at Ex.D2. Ex.D3 is the FIR registered in pursuance of the said private complaint by Tavarekere Police and Ex.D4 which is stop payment given by the accused herein to Syndicate Bank for cheque numbers which are at Ex.P1 and P2 and another cheque bearing No.324009 and also complaint by the husband of the complainant before Magadi Road Police. The FIR and complaint is at Ex.D6. The trial court has not at all discussed 14 Crl.A.No.1216/2019 anything about these documents. The version of the defence of the accused is not at all discussed nor appreciated the oral and documentary evidence. The contention of the accused was that the cheques in question were taken forcibly and he has also contended that there is inconsistent version by the husband of the complainant in the complaint given before Magadi Road Police. It was also further contended that purpose of amount given was for illegal purpose and against the public policy. The accused has issued stop payment instructions which is the cause of dishonour of the cheque. The trial court has not at all discussed whether such instruction of stop payment was with an intention to deprive the realization and honoring of the cheques, despite of sufficient funds attracting offence under Sectoring 138 of NI Act.
15. Having regard to the infirmity in the judgment the judgment is not sustainable. Hence, it requires the matter to be reheard and retrial by properly appreciating the oral and documentary evidence which requires to be remanded.
16. Accordingly, the point No.1 and 2 are not answered with a direction for trial court to ad-admit the case and to rehear the matter 15 Crl.A.No.1216/2019 and proceed in accordance with law and the point No.3 is answered in the Affirmative.
17. POINT No.4:- Hence, for the above reasons, the following.
ORDER Acting under Section 374 (3) of Cr.P.C. the mater is remanded to the trial court.
The trial court shall re-admit the case in original C.C. number and re-hear the matter based on the oral and documentary evidence and proceed in accordance with law.
The parties are directed to appear before the trial court on 02.01.2021 without notice.
Office to send back the trial Court records with copy of this judgment.
[Dictated to the Judgment Writer, transcribed by him, transcription corrected and then pronounced by me in open court, dated this the 19th day of NOVEMBER 2021.] (Krishnamurthy R. Padasalgi) LV Addl. City Civil & Sessions Judge, Bengaluru.
16Crl.A.No.1216/2019 Judgment passed and pronounced in the open court. The operative portion reads as under.
ORDER Acting under Section 374 (3) of Cr.P.C. the mater is remanded to the trial court.
The trial court shall re-admit the case in original C.C. number and re-hear the matter based on the oral and documentary evidence and proceed in accordance with law.
The parties are directed to appear before the trial court on 02.01.2021 without notice.
Office to send back the trial Court records with copy of this judgment.
(Krishnamurthy R. Padasalgi) LV Addl. City Civil & Sessions Judge, Bengaluru.