Bangalore District Court
Mr. Pradeep Kumar K.S vs Mr. D.K. Santhosh on 2 January, 2023
IN THE COURT OF THE LVIII ADDL.CITY CIVIL AND
SESSIONS JUDGE (CCH-59), BENGALURU CITY.
Dated this the 2nd day of January 2023
PRESENT
Sri.N.Krishnaiah. B.Sc., LL.B.,
LVIII Addl. City Civil & Sessions Judge (CCH-59),
Bengaluru.
: CRIMINAL APPEAL NO.554/2021:
APPELLANT : Mr. Pradeep Kumar K.S.,
S/o Shankaregowda,
Aged about 41 years,
Residing at Koththanahalli
Village, Koippa Hobli,
Maddur Taluk,
Hosakere Post,
Mandya District-571 419.
(By Sri.S.V., Advocate)
-V/S-
RESPONDENT : Mr. D.K. Santhosh,
S/o Late Kariyanna,
Aged about 35 years,
Residing at No.12,
1st Main Road, 1st Cross,
Hoskerhalli,
Veerabhadra Nagar,
Bangalore-560 085.
(By Sri.Rajesh.A.Advocate)
2 Crl.Apl.No.554/2021
JUDGMENT :
This is an accused's appeal filed under section 374(3) of Cr.P.C., seeking to set aside the judgment of conviction and order of sentence dated 17.04.2021 passed in C.C.No.4163/2018 on the file of the learned VI Additional Judge, Court of Small Causes and Additional Chief Metropolitan Magistrate, Bangalore (SCCH-2) and modify the judgment in terms of the same and or in alternate to remand the complaint by providing an opportunity to the appellant to cross examine the complainant witness and to lead his defence evidence and further to pass such other order as deem fit by allowing this appeal, in the ends of justice.
2. For the sake of convenience, the rank of the parties is referred as referred before the trial court.
3. Before going to the grounds urged by the appellant/accused, it is necessary to note down the brief factual scenario of the case of the complainant. 3 Crl.Apl.No.554/2021
4. The respondent herein, who is the complainant had presented this private complaint under section 200 of Cr.P.C., against this appellant/accused for the offence punishable under section 138 of N.I.Act by alleging that in the month of May 2017, the accused being one of his relative, had availed loan of Rs.6,00,000/- by way of cash by agreeing to repay the same within one year from the date of the said loan. He has also issued a post dated cheque bearing No.755415 dated 04.06.2018 for a sum of Rs.6,00,000/- drawn on Syndicate Bank, Kathriguppe Branch, Bangalore in favour of complainant and assured that it would be honored on its presentation. After expiry of the stipulated period, when the complainant has presented the said cheque for encashment on 04.06.2018 through his banker Vijaya Bank, Maddur, but it was dishonored and returned with an endorsement "Funds Insufficient" dated 19.06.2018. Subsequently, the complainant got issued a legal notice dated 17.07.2018 and demanded the accused to pay the cheque amount within 15 days from the date of 4 Crl.Apl.No.554/2021 receipt of the said notice. Though the said notice was served on the accused on 20.07.2018 but the accused neither paid any amount nor replied. Then, without any alternative, the complainant was forced to present this private complaint before the trial court.
5. After taking cognizance, in response to the summons, the accused appeared before the trial court through his counsel and he was released on bail. On subsequent date, when accusation for the offence punishable under section 138 of N.I.Act was recorded by the learned trial judge, he pleaded not guilty and claimed to be tried.
6. During the course of trial, in order to prove his claim, the complainant got examined himself as PW-1 and he has produced 6 documents and got marked at Ex.P.1 to 5 and closed his side.
7. The accused has also filed an application under section 145 (2) of N.I.Act seeking permission to cross 5 Crl.Apl.No.554/2021 examine PW-1. The said application came to be allowed by the trial Court. But, subsequently, the accused and his counsel did not appear before the trial court and hence, cross examination of PW-1 and also defence evidence was taken as nil. The statement of the accused under section 313 of Cr.P.C was recorded. After hearing on complainant's side, the learned Magistrate has posted the case for judgment.
8. After hearing on complainant side, by considering the materials on record, the learned trial judge found guilty of the accused for the offence punishable under section 138 of N.I.Act and accordingly, the accused was convicted and sentenced to pay fine of Rs.6,25,000/. In default of payment of fine, he shall undergo simple imprisonment for a period of three months. Out of the total fine amount, a sum of Rs.6,20,000/- was ordered to be paid to the complainant as compensation under section 357(1) 6 Crl.Apl.No.554/2021
(b) of Cr.P.C., and remaining balance of Rs.5,000/- shall be remitted to the State.
9. Being aggrieved by the said judgment of conviction and order of sentence, the accused has preferred this appeal among the following grounds:
1. The judgment of the trial court is opposed to facts, law and probabilities of the case.
There has been a total non compliance of the provisions of law as enumerated under the provision of Cr.P.C., Evidence Act and N.I.Act.
2. The learned Magistrate has not applied his judicial mind in its perspective while convicting the accused.
3. The learned Magistrate has ignored the memo filed by this accused questioned the jurisdiction of the Court. Due to pandemic Covid-19 and SOP he could not appear before the trial court. After resuming SOP no court notice was issued. There was no sufficient opportunity was accorded to 7 Crl.Apl.No.554/2021 depend his case. Only after issuing FLW he came to know that the trial court has passed the judgement by ignoring the memo dated 22.01.2020. Hence, the impugned judgment of conviction and order of sentence is not sustainable and the same is required to be set aside, in the ends of justice.
10. After presenting this appeal, the same was numbered as Crl.Appeal.No.554/2021 by the Hon'ble Principal City Civil and Sessions Judge and the same has been made over to this court, for disposal in accordance with law.
11. In response to the notice, the respondent/ complainant appeared before this court through his counsel. Trial court record called and placed along with this appeal.
12. In spite of sufficient opportunity was given, the appellant and his counsel did not appear before this court to 8 Crl.Apl.No.554/2021 address his arguments. Hence, the argument of appellant side was taken as nil.
13. On the contrary, the learned counsel for the respondent has filed his written argument and supported the findings of the learned trial judge. He has further submitted that, in spite of sufficient opportunity was given, the accused has not appear before the trial court either to cross examination of PW-1 and to lead any defence evidence. The complainant has produced sufficient oral and documentary evidence and succeeded to prove all the ingredients of the alleged offences. Hence, the trial court judge has rightly appreciated the evidence on record and passed the impugned judgment of conviction and order of sentence.
14. He has further submitted that, after filing this appeal, though this court has pleased to stay the impugned judgment of conviction and order of sentence with a 9 Crl.Apl.No.554/2021 condition that, the appellant should deposit 20% out of the total fine amount. But, the appellant has not complied the order of this Court also. Except vague grounds, no valid grounds made out to set aside the impugned judgment of conviction and order of sentence. Hence, he requests to dismiss this appeal in the ends of justice.
15. In view of the aforesaid grounds and also rival submission made by both the parties, the following points that would arise for my consideration are:-
1. Whether the trial court has not provided sufficient opportunity to this accused to cross examine PW-1 and to lead his defence evidence?
2. Whether the trial court has committed any error in passing the impugned judgment of conviction and the same is required to be interfered by this Court.
3. Whether it is a fit case to remand as prayed for?
4. What order?10 Crl.Apl.No.554/2021
16. I have heard the arguments of respondent's side and perused the records.
17. My findings on the aforesaid points are as follows:-
POINT NO.1 - In Negative.
POINT NO.2 - In Negative.
POINT NO.3 - In Negative.
POINT NO.4 - As per final order for the following:-
: REASONS:
18. POINT NOS.1 TO 3: Since all these points are interlinked, with each other, they are taken up together, for discussion, in order to avoid repetition of facts and evidence.
19. On the background of the aforesaid grounds urged by the appellant/accused and also submission made by the learned counsel for the complainant, on perusal of the 11 Crl.Apl.No.554/2021 entire evidence, it is evident that, this accused, who is none other than one of the relative of the complainant, has availed hand loan of Rs.6,00,000/- from the complainant in the first week of 2017. He has agreed to repay the same within one year and handed over a post dated cheque for Rs.6,00,000/- at Ex.P.1. On the assurance of the accused, when the siad cheque was presented for encashment on 04.06.2018. but, the same was dishonoured and returned for want of sufficient funds on 19.06.2018 as per Ex.P.2. Subsequently, the complainant caused demand notice on 17.07.2018 demanding the accused to pay the cheque amount within 15 days. Ex.P.3 is the copy of the legal notice. The said notice was served upon the accused on 20.07.20108 as per postal acknowledgment at Ex.P.4 and 5. In spite of service of said notice, the accused has not paid any amount and he has also not issued any reply. Accordingly, on 28.08.2018 the complainant has presented this complaint before the trial court. Therefore, on perusal of this oral and documentary evidence placed by the 12 Crl.Apl.No.554/2021 complainant he has made out all the ingredients of the offence punishable under section 138 of N.I.Act.
20. When the complainant has made out all the legal requirements of the alleged offence, the court is bound to draw the presumption as provided under section 139 of N.I.Act, to the effect that, the said cheque was issued towards discharge of antecedent liability. Accordingly, the learned Magistrate has rightly drawn the presumption in favour of the holder in due course as the cheque was issued towards legally enforceable debt.
21. No doubt, it is well settled principle of law that, the said presumption is rebuttable presumption. But, it is for the accused to place some material to rebut the said presumption either by producing oral or documentary evidence or by eliciting his defence during the course of cross examination of the complainant.
13 Crl.Apl.No.554/2021
22. But, admittedly in the case on hand, the accused has not chosen to cross examine PW-1 and he has also not adduced any defence evidence as he has been remained absent. Accordingly, the trial court judge has considered the cross of PW-1 was taken as nil and the matter was posted for arguments. After hearing the complainant's side, the learned trial judge has passed the impugned judgment of conviction and order of sentence.
23. In this appeal, the appellant has attacked the impugned judgment on the major ground that, though he had filed a memo before the trial court, by questioning the jurisdiction of the trial court, but without considering the same, the learned trial judge has passed the impugned judgment. The learned trial judge has not given sufficient opportunity to him to defend his case on merit.
24. No doubt, as contended by the accused though he has filed a memo on 22.01.2020 questioning the 14 Crl.Apl.No.554/2021 jurisdiction of the trial court and seeking direction to the complainant to present the said complaint before the appropriate court. But, first of all in his memo, he has not stated, particularly on which ground, the trial court has no jurisdiction. Therefore, except vague ground that, the court has no jurisdiction, he has not spell out on particular ground, the trial court had no jurisdiction.
25. That apart, on perusal of the order sheet, which is very clear that, after filing the said memo, he himself or his counsel did not appear before the trial court to convince as to how the trial court had no jurisdiction to entertain the said complaint. Though the learned trial judge has given sufficient opportunity to address his arguments, but the accused or his counsel did not appear. Accordingly, the trial judge has considered that, the cross examination of PW-1 and the defence evidence was taken as nil and the matter was posted for arguments. Even when the matter was posted for arguments or judgment, the accused did not 15 Crl.Apl.No.554/2021 appear before the trial court to recall the said order by filing any application. It shows that, the accused was very negligent in conducting the case before the trial court.
26. Even otherwise, in this appeal also, except filing this appeal and obtained stay order subsequently, the accused did not appear before this court to address his argument. Though this Court has stayed the impugned judgment of conviction and order of sentence subject to deposit of 20% before the trial court, but as per the order sheet of the trial court, it appears that the accused has not complied the order of this court also. Even otherwise, when the matter was posted for argument, in spite of sufficient opportunity was given neither the appellant/accused nor his counsel appeared before this court to address this argument. Therefore, the accused has not given an explanation for his non appearance before the trial court when an opportunity was given to cross examine PW-1 and to lead his defence evidence. In this appeal also, though he 16 Crl.Apl.No.554/2021 has challenged the judgment of conviction and order of sentence on merit but he has not placed any material to disbelieve the oral and documentary evidence placed by the complainant. Admittedly the oral and documetnary evidence placed by the complainant has become unchallenged. He has not made out any valid reasons, as to why he did not appear before the trial court to cross examine PW-1 and to lead his defence evidence. Therefore, this conduct of the accused is clearly indicates that, he is not vigilant and not shown any bonafide reasons in conducting the case either before the trial court or before this Appellate Court. When he has not made out sufficient cause for is non appearance before the trial court, the question of remanding this case does not arise.
27. Moreover, the complainant has placed sufficient cogent evidence and proved all the ingredients of the offence punishable under section 138 of N.I.Act. The trial court has not committed any error in passing the impugned 17 Crl.Apl.No.554/2021 judgment. In this appeal also, no valid grounds made out to set aside the same by allowing this appeal. Hence, the appellant has not made out any sufficient grounds to entertain this appeal and the same is deserves to be dismissed with costs. In view of the above reasons, I answer point Nos.1 to 3 in negative.
28. POINT NO.4: In the result, for the aforesaid reasons, I proceed to pass the following:
: ORDER :
The appeal preferred by the appellant/accused under section 374(3) of Cr.P.C., is hereby dismissed.
The impugned judgment of conviction and order of sentence dated 17.04.2021 passed in C.C.No.4163/2018 on the file of the learned VI Additional Judge, Court of Small 18 Crl.Apl.No.554/2021 Causes and Additional Chief Metropolitan Magistrate, Bangalore, is confirmed.
Send back the TCR to the trial court along with copy of this judgment forthwith.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 2nd day of January 2023).
(N.KRISHNAIAH) LVIII ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.
19 Crl.Apl.No.554/2021
Judgment pronounced in the open Court
(vide separate order)
ORDER
The appeal preferred by the
appellant/accused under section 374(3) of Cr.P.C., is hereby dismissed.
The impugned judgment of conviction and order of sentence dated 17.04.2021 passed in C.C.No.4163/2018 on the file of the learned VI Additional Judge, Court of Small Causes and Additional Chief Metropolitan Magistrate, Bangalore, is confirmed.
Send back the TCR to the trial court along with copy of this judgment forthwith.
(N.KRISHNAIAH) LVIII ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.