Bangalore District Court
M/S.Anjaneya Concrete Blocks vs H.S.Puttaswamy on 14 January, 2020
IN THE COURT OF THE LVIII ADDL.CITY CIVIL AND SESSIONS
JUDGE (CCH-59), BENGALURU CITY.
Dated this the 14th day of January, 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.467/2017:
APPELLANTS: 1. M/s.Anjaneya Concrete Blocks,
A partnership firm having address
At Bingipura Village,
Bettadasapura Post,
Bengaluru South Taluk,
Bengaluru Urban District.
2. Sri Dananjaya, Partner
M/s.Anjaneya Concrete Blocks,
A partnership firm having address
At Bingipura Village,
Bettadasapura Post,
Bengaluru South Taluk,
Bengaluru Urban District.
And having residential address
At No.27, "Sri Ranga",
1st Main Road, Brindavana
Layout, Arkere Post,
Bengaluru - 560 076.
(By Sri.A.V.M., Advocate)
-V/S-
2 Crl.Apl.467/2017
RESPONDENT: H.S.Puttaswamy,
S/o.Sathe Gowda,
Aged about 62 years,
Residing at No.1137,
35th "C" Cross, 26th Main,
4th "T" Block, Jayanagar,
Bengaluru - 560 041.
(By Sri.G.R., Advocate)
: JUDGMENT :
The appellants have 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.16897/2015 dated 09.03.2017 on the file of learned XVI 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:-
According to the complainant the accused No.1 is a partnership firm and accused No.2 is a partner of accused No.1 and 3 Crl.Apl.467/2017 they were maintaining good business relationship. In this background, the accused No.2 has approached the complainant in the month of July 2011 and availed hand loan of Rs.6,00,000/- to meet his urgent financial commitments and agreeing to repay the loan within one year with interest at the rate of 18% per annum.
After one year, the complainant has approached the accused and requested him to repay the loan as agreed. Due to several requests, the accused has issued Ex.P.1 cheque bearing No.528797 dated 07.05.2015 in favour of the complainant for Rs.6,00,000/- in discharge of legal liability. When Ex.P.1 cheque was presented for encashment, it was returned dishonoured for want of sufficient funds in the account of the accused. The necessary endorsement given by the bank is marked as Ex.P.2. Thereafter, the complainant has issued Ex.P.3 legal notice to the accused on 21.05.2015 through RPAD demanding repayment of the cheque amount. Unfortunately the notice returned with an endorsement "Refused and "Insufficient Address". However, the notice sent to the residential address of accused No.2 was duly served upon him on 24.05.2015. In spite of the same, the accused has not paid the cheque amount. Therefore, having no other go, the complainant has filed the private complaint 4 Crl.Apl.467/2017 against the accused in the trial court 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 court through his advocate 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 himself examined as PW-1 and got marked Ex.P.1 to Ex.P.25 documents in evidence. The accused has remained continuously absent before the Court and therefore the statement of accused under section 313 of Cr.P.C., has been dispensed with. There is no evidence of defence on behalf of the accused.
6. In spite of sufficient opportunity, the counsel for the accused has not addressed his arguments. After hearing the arguments of the learned counsel for the complainant, the learned XVI Additional Chief Metropolitan Magistrate, Bengaluru City, by 5 Crl.Apl.467/2017 impugned judgment and order of sentence dated.09.03.2017, convicted the accused Nos.1 and 2 for the offence punishable under section 138 of Negotiable Instruments Act and sentenced the accused No.2 to pay fine of Rs.6,25,000/- and further directed the appellant/accused No.2 to pay a sum of Rs.6,15,000/- as compensation out of the fine amount to the respondent/complainant and remaining sum of Rs.10,000/- was ordered to be remitted to the State. Thus, being aggrieved by the impugned order of the trial court, the appellants have filed the present appeal on the following grounds:
1) The order of the trial Court is opposed to law, facts and probabilities of the case
2) The learned Magistrate has erred in convicting the appellant on the sole evidence of the respondent.
3) The learned Magistrate has not given opportunity to the appellants to cross examination of PW-
1/respondent.
4) The Court below is erred in recording of the statement under section 313 of Cr.P.C.
5) The Court below has not given opportunity to the appellant to adduce his evidence and they have good case on merits.
On these grounds, the appellants have prayed to set aside the impugned order by allowing this appeal.
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7. The learned counsel for the respondent has submitted written arguments. Written arguments are accepted. No representation on behalf of the appellant. Hence argument of the appellants are taken as nil.
8. The following points arise for my consideration are:-
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?
3. What order?
9. 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 :
10. POINT NOS.1 AND 2: Since these points are inter connected to each other, hence, to avoid repetition of facts and 7 Crl.Apl.467/2017 evidence, these points are taken up together for common discussion.
11. At the out set, it is very necessary to note whether before the Trial Court the complainant has satisfied the ingredients of section 138 of N.I.Act.
12. As noted supra, Ex.P.1 is the questioned cheque, it is dated 07.05.2015. It was presented for encashment and retuned with endorsement "Insufficient Funds" as per Ex.P.2 dated 12.05.2015. Immediately, thereafter the complainant has given legal notice to the accused on 21.05.2015 as per Ex.P.3 demanding for repayment of the cheque amount. The said legal notice returned unserved "Refused and Insufficient address". The notice sent to the residential address of appellant No.2 was duly served upon him on 24.05.2015. All these documents are considered conjointly, prima facie they go to show that the complainant has satisfied the ingredients of section 138 of N.I.Act to initiate the prosecution against the accused. The Trial Court in its judgment impugned in the present appeal after going through the above materials on record, has consciously held that the complainant has satisfied the 8 Crl.Apl.467/2017 basic ingredients of the offence punishable under section 138 of N.I.Act. Hence, the said finding of the trial court cannot be interfered with.
13. It is the contention of the complainant that the accused being known to him had borrowed Rs.6,00,000/- as hand loan for the purpose of his urgent financial commitments. He had agreed to repay the loan within a stipulated time. However, as the accused failed to keep up the promise, has issued the questioned cheque at Ex.P.1 in favour of the complainant in discharge of the above referred legal debt or liability. The said cheque came to be dishonoured. Therefore, the accused is guilty of the offence punishable under section 138 of N.I.Act.
14. It is pertinent to mention that through out the trial, the accused has never disputed issuance of Ex.P.1 cheque and also the signature appearing on the same. Thus, the accused has admitted Ex.P.1(a) signature. By taking into consideration these aspects, the Trial Court having placed reliance on the decision of Hon'ble Apex Court in the case of Rangappa V/s. Mohan (AIR 2010 SC 1898) has held that the complainant has made out a case 9 Crl.Apl.467/2017 punishable under section 138 of N.I.Act against the accused. Therefore, this is a fit case to draw initial presumption under section 139 of N.I.Act in favour of the complainant. Accordingly, the Trial Court raised the initial presumption in favour of the complainant and thrown the matter in the Court of the accused to rebut the said presumption.
15. During the course of arguments, the only ground urged by the learned counsel for the appellant is that the Trial Court did not give sufficient opportunity to the accused to cross examine P.W.1 and to lead evidence in defence. Therefore, the impugned judgment is liable to be set aside on this count alone and to remand the matter for fresh trial.
16. On the other hand, the learned counsel for the respondent would submit that the order sheet of the Trial Court and also the observations made by the Trial Court in the judgment impugned are sufficiently clear to indicate that the umpteen opportunities were given to the accused to cross examine P.W.1 and to lead evidence in defence. However, the accused, who is not diligent has failed to utilize the opportunity. Therefore, now he 10 Crl.Apl.467/2017 cannot contend that the Trial Court has committed an illegality in not giving sufficient opportunity to him to cross examine the P.W.1 and also to lead defence evidence.
17. In the light of the above arguments, I have gone through the order sheet of the Trial Court and also the relevant paragraphs of the judgment of the Trial Court impugned. The order sheet indicates that the complainant was examined as P.W.1 on 08.11.2016. Thereafter, it was posted for cross-examination of P.W.1 on 26.11.2016. On that day on the request of the learned counsel for the accused, the Trial Court has adjourned the matter for cross-examination of P.W.1 to 27.12.2016. On that day the Presiding officer was on casual leave. Therefore, the case was adjourned to 23.01.2017 for cross-examination of P.W.1. The order sheet dated 23.01.2017 indicates that the case was called out at 11- 55 a.m. There was no representation for accused. Therefore, the matter was posted for cross-examination of P.W.1 by 3-00 p.m. Even at that point of time was also neither the accused nor the learned counsel representing him were present. Therefore, looking to the age of the litigation, the Trial Court has forfeited the right of the accused for cross-examination of P.W.1 and thereafter the 11 Crl.Apl.467/2017 matter was posted for statement of the accused under section 313 of Cr.P.C. The same thing observed by the Trial Court in paragraph No.21 of the judgment that the accused has failed to utilize the best opportunity given to him. Hence, I do not find any illegalities committed by the Trial Court in forfeiting the right of the accused to cross examine the P.W.1. As mentioned supra, after giving opportunities only, the Trial Court has held that the cross- examination of P.W.1 is nil.
18. Similar much has been argued by the learned counsel for the accused regarding recording of statement under section 313 of Cr.P.C. of the accused in the Trial Court. It is argued that there is no provision in Cr.P.C., to dispense with the 313 statement of the accused. Therefore, the judgment of the Trial Court impugned is liable to be set aside. As against this, the learned counsel for the complainant would submit that the Trial Court records would indicate that sine beginning, the accused did not show any interest to participate in the trial. Even the learned counsel for the accused did not advance the arguments when the matter was posted for arguments. Thus, considering the attitude of the accused and his counsel, the Trial Court has rightly dispensed with recording of 313 12 Crl.Apl.467/2017 statement of the accused. This is evident from paragraph No.9 of the judgment of the Trial Court impugned in the present appeal. According to the learned counsel for the complainant, the dispensation of 313 statement alone is not sufficient to set aside the judgment as when there is no cross examination of P.W.1, the Court can dispense with 313 statement. To support his argument, the learned counsel for the complainant has placed reliance on the decision off Hon'ble High Court of Madras in the case of B.Chainraj V/s. Assistant Collector of Central Excise (LAWS (MAD) 1988
311. In paragraphs 7 and 8, the Hon'ble High Court of Madras has observed as under:
" 7. To sum up, the examination of the accused prior to the charge under the inherent powers of the court will be exercised only in exceptional cases and that too to the extent necessary for the purpose of charge framing. The facultative examination of the accused under section 313 (1)(a), Cr.P.C., can take place only after the cross-
examination of the concerned witnesses is over. The examination under sub-section (1)(b) of section 313 of Cr.P.C. will take place when the cross-examination of the entire prosecution witnesses is completed.
13 Crl.Apl.467/2017
8. In the present case, the Magistrate has taken the wrong step to question the accused thoroughly before the cross-examination of any witness. However, it has not been shown that in this case a prejudice has occurred to the accused and that a failure of justice has resulted there from."
19. Thus, in view of the law laid down in the decision referred to supra, I do not find any illegality in dispensation of recording of 313 statement of the accused by the Trial Court. Hence, this count also, the judgment of the Trial Court cannot be interfered with.
20. The Trial Court has considered all these aspects in detail in its judgment impugned in the present appeal and it has arrived to a conclusion that the accused has committed the offence punishable under section 138 of N.I.Act. This conclusion of the trial court cannot be termed as illegal. Therefore, the judgment of the trial court 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".
14 Crl.Apl.467/2017
21. POINT No.3: In view of my finding on point Nos.1 and 2, in the result, I proceed to pass the following:
: ORDER :
The appeal filed by the appellants under section 374(3) of Cr.P.C., is hereby dismissed.
The judgment and order passed by the learned XVI Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.16897/2015 dated 09.03.2017 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 14th day of January 2020) (VENKATESH.R.HULGI) C/C of LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.
15 Crl.Apl.467/2017 Judgment pronounced in the open Court ( vide separate order) ORDER The appeal filed by the appellants under section 374(3) of Cr.P.C., is hereby dismissed.
The judgment and order passed by the learned XVI Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.16897/2015 dated 09.03.2017 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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