Bangalore District Court
Kenchappa & Sons vs J. Gupta on 21 November, 2015
IN THE COURT OF THE LI ADDL. CITYF CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 21st day of November 2015
PREsSENT:
Sri G.D.Mahavarkar, M.A., LL.B (Spl),
M.L. (Lab & Indstrl Rlns & Adm. Laws),
LL.M (Business Laws), M.Phil-in-Law
(Juridical Science)
LI Addl. City Civil & Sessions Judge, Bengaluru City.
Crl. Appeal No. 267/2014
Appellant : Kenchappa & Sons,
Original Complainant A Proprietary concern,
No.82, 3rd Main Road, 5th Cross,
BEML Layout,
Basaveshwaranagar,
Bangalore - 560 079.
Represented by it's Proprietor,
Lingaraju K.
S/o. Late Kenchappa,
Aged about 48 years.
(By Sri K.N. Shashidhar,
Advocate)
Vs.
Respondent : J. Gupta,
Original Accused S/o. Ajjaiah Shetty,
Aged about 50 years,
C/o. Siddamma,
2 Crl.Appeal No.267/2014
R/a. No.939, Raghavendra
Block, BSK 3rd Stage,
Srinagar,
Bangalore - 560 050.
(By M/s. B.C. Mahesha &
Associates, Advocates)
* * * *
JUDGMENT
This is an appeal preferred by the appellant-original complainant against the respondent-original accused U/Sec.372 of Cr.P.C., against the impugned conviction judgment passed by the XIII ACMM Court, Bengaluru, in it's CC No.11140/2009, dated 04.02.2014.
2. The original complainant before the lower court having preferred the instant appeal against the original accused, as the appellant and the respondent, respectively, are hereby assigned with their original ranks before the lower court i.e., the appellant as the complainant and the respondent as the accused in the 3 Crl.Appeal No.267/2014 instant discussion for the purpose of brevity and convenience to avoid the confoundation and perplexity.
3. This is a criminal case at CC No.11140/2009 arising-out of the PCR No.5453/2009 filed by the complainant against the accused before the lower court seeking for taking cognizance for the offence committed by the accused U/Sec.138 of the Negotiable Instruments Act, 1881 and punish him in accordance with law and for the grant of compensation to the complainant as per Section 357 of Cr.P.C. towards the face-value of the cheque with other incidental charges etc.
4. The epitomized facts projected from the complaint before the lower court run thus:
The complainant and the accused being known to each-other for the last 30 years, the accused approached the complainant for the hand-loan of Rs.8,00,000/- for setting-up a new clothes business, in the 2nd week of January 2008; Wherefore, the complainant advanced the 4 Crl.Appeal No.267/2014 hand-loan of Rs.8,00,000/- to the accused accordingly in the 3rd week of January 2008, whereby, he agreed to repay the said hand-loan amount within 6 to 8 months there-from. After the efflux the stipulated period, the complainant despite of having requested the accused to repay the said amount, ultimately the accused issued 2 cheques bearing No's.382379, dated 02.02.2009 and cheque bearing No.382380, dated 02.02.2009, for Rs.4,00,000/- each respectively, drawn on Central Bank of India, Rajajinagar Branch, Bengaluru, and on presenting the said both the cheques by the instant complainant to his bankers State Bank of Mysore, Basaveshwaranagar Branch, Bengaluru, for encashing the same, the said both the cheques came to be dishonored and bounced with the bank endorsement as 'insufficient funds' on 03.02.2009, consequent-upon which, the complainant issued the legal notice to the accused on 05.02.2009 through RPAD and UCP, whereby 5 Crl.Appeal No.267/2014 the RPAD returned with a postal-endorsement thereon as 'party refused to take it, returned to sender'; Whereas, the copy sent through UCP was duly served on the accused.
Despite of the same, the accused has neither replied with the said notice nor repaid the said cheque amount within the stipulated period. The accused being fully-aware that, there is no sufficient amount in her bank account to honor the said both the cheques bearing No's.382379 and 382380 worth of each Rs.4,00,000/- towards the legally enforceable debt, has issued the said both the cheques to the complainant and thereby, the accused has committed the offence punishable U/Sec.138 of the Negotiable Instruments Act, 1881.
5. After lodging the complaint, the lower court has taken the cognizance in exercise of the powers conferred- upon it U/Sec.190(a) & (c) of Cr.P.C., against the instant accused for the offence punishable U/Sec.138 of the Negotiable Instruments Act, 1881.
6 Crl.Appeal No.267/2014
6. After recording the sworn-statement of the instant complainant, the process U/Sec.204 of Cr.P.C. having been issued, the accused has put-in his appearance before the lower court in response to the summons issued against him, through his learned counsel.
7. On moving for bail, the accused has been released on bail.
8. The lower court has framed the substance of accusation for the offence punishable U/Sec.138 of the Negotiable Instruments Act, 1881, and the same was read over and explained to the accused in the vernacular best known to him.
9. The accused has denied the same and pleaded not guilty and further claimed to be tried.
10. In order to prove the guilt against the accused, the complainant himself has got examined as P.W.1 and placed his reliance on the documentations marked at 7 Crl.Appeal No.267/2014 Exs.P.1 to P.13, in which Exs.P.1 & P.2 are the cheques; Exs.P.3 & P.4 are the bank endorsements; Ex.P.5 is the copy of the legal notice issued against the accused on 05.02.2009; Ex.P.6 is the speed post-receipt; Ex.P.7 is the UCP receipt; Ex.P.8 is the returned speed post-cover; Ex.P.9 is the returned cover opened in the court; Ex.P.10 is the Income Tax Returns copy; Ex.P.11 is the bank account extract; Ex.P.12 is the company registration certificate and Ex.P.13 is the certificate.
11. After the complainant's evidence was closed, since the incriminating circumstances were arising-out of the evidence of the complainant's side witnesses, the statements of the accused under the provisions of Section 313 of Cr.P.C. were recorded.
12. Per contra, to rebut the case and the evidence of the complainant, the accused himself has got examined as DW.1 and the husband of the accused by name M.J.Gupta, himself has been got examined as DW.2 and 8 Crl.Appeal No.267/2014 thereby placed the reliance on the documentations marked at Exs.D.1 & D.2, in which Ex.D.1 is the copy of the police complaint and Ex.D.2 is the copy of endorsement given by the police.
13. The lower court having heard the arguments advanced by both the learned counsel for the complainant as-well-as the learned counsel for the accused, basing on the material available on record from the complainant, the lower court has framed the points for it's consideration as under:
(1) Whether the complainant proves that, the accused had issued 2 cheques bearing No.382379 for Rs.4,00,000/-, dated 02.02.2009 and cheque bearing No.382380, dated 02.02.2009 for Rs.4,00,000/- towards the discharge of legally enforceable debt due by him and when the cheque was presented for encashment, it came to be returned as 'funds insufficient' and thereby, the accused has committed the offence punishable U/Sec.138 of Negotiable Instruments Act, 1881?
(2) What order?9 Crl.Appeal No.267/2014
14. On hearing the arguments of both sides, the lower court has given the findings on the points for consideration raised by it, as under:
Point No.1 .. In the partly Affirmative.
Point No.2 .. As per the final order,
for the following:
-------- and thereby convicted the accused by sentencing him to pay a fine of Rs.4,03,000/- and in default of payment of the same, simple imprisonment for 6 months and out of the said fine amount, the complainant is entitled for Rs.4,00,000/- the cheque amount as compensation and the balance amount of Rs.3,000/- is ordered to be defrayed to the State for the expenses incurred in the prosecution.
15. Being aggrieved by the impugned judgment passed by the lower court, the appellant-original complainant before the lower court, has preferred the instant appeal against the respondent-original accused before the lower court, on the following: 10 Crl.Appeal No.267/2014
GROUNDS OF APPEAL
(a) The judgment and order under the appeal is illegal, arbitrary and the same is passed without the facts and circumstances of the case properly.
(b) The lower court has wrongly exercised the discretion to reduce the sentence only to the 50%.
(c) The lower court has wrongly relied-upon the citation reported in 2001(3) Kar.L.J. 367 of the Hon'ble High Court of Karnataka, in which it is held that, Bombay Public Trust Act, 1950 -
Sections 50 & 51 - Removal of Secretary to Trust - Suit for - Consent of Charity Commissioner is mandatory, and without consent, suit is not maintainable.
(d) Though the cheque amount is Rs.8,00,000/-, the lower court has imposed the sentence to pay a sum of Rs.4,03,000/- only, without assigning the reason to arrive at such a conclusion by the lower court; Wherefore, it is absolutely contrary to law.
11 Crl.Appeal No.267/2014
(e) Though the lower court has held that, the cheques as per Exs.P.1 & P.2 were issued by the accused to discharge the legally enforceable debt due to the complainant to the tune of Rs.8,00,000/-, it ought to have imposed the maximum sentence taking-into consideration the nature of the transaction held between both the parties.
Hence, prayed for allowing the instant appeal.
16. Per contra, the respondent-accused has not filed any counter-objections to the instant appeal memo.
17. I have heard the arguments of both the learned counsels for the appellant-complainant as-well-as the respondent-accused.
18. Basing on the material available on record and grounds of appeal, the points that arise for my consideration are:
(1) Whether the lower court has justified in affirming partly the Point No.1 raised for 12 Crl.Appeal No.267/2014 it's consideration holding that, the complainant has established that, the accused had issued 2 cheques bearing No.363459, dated 02.02.2009, for Rs.4,00,000/- and cheque bearing No.363460, dated 02.02.2009, for Rs.4,00,000/- towards the dischargence of legally enforceable debt due to him and on presenting the said cheques for encashment, they came to be dishonored with bank endorsements as 'funds insufficient', whereby the accused has committed the offence punishable U/Sec.138 of the Negotiable Instruments Act, 1881?
(2) Whether the impugned judgment of the lower court is arbitrary, baseless, capricious, devoid of merits, erroneous, frivolous and perverse without being on the sound principles of law and warrants for the interference by the instant court?13 Crl.Appeal No.267/2014
(3) To what order?
19. My findings on the above points are as under:
Point No.1 .. In the Negative.
Point No.2 .. In the Affirmative.
Point No.3 .. As per the final order, for
the following:
REASONS
20. The status and ranking assigned in the lower court to the complainant and accused are being adopted and adhered-to in the instant discussion for the purpose of brevity and convenience to avoid the confoundation and perplexity.
21. Point No's.1 & 2:- To avoid the reiteration of the material available in hand and to appreciate the evidence adduced before the lower court, in a better position, I hereby take-up the instant Point No's.1 & 2 together admixingly for discussion.
14 Crl.Appeal No.267/2014
22. It is the specific contention of the complainant by way of his complaint that, the complainant and the accused being known to each-other for the last 30 years, the accused approached the complainant for the hand- loan of Rs.8,00,000/- for setting-up a new clothes business, in the 2nd week of January 2008; Wherefore, the complainant advanced the hand-loan of Rs.8,00,000/- to the accused accordingly in the 3rd week of January 2008, whereby, he agreed to repay the said hand-loan amount within 6 to 8 months there-from. After the efflux the stipulated period, the complainant despite of having requested the accused to repay the said amount, ultimately the accused issued 2 cheques bearing No's.382379, dated 02.02.2009 and cheque bearing No.382380, dated 02.02.2009, for Rs.4,00,000/- each respectively, drawn on Central Bank of India, Rajajinagar Branch, Bengaluru, and on presenting the said both the cheques by the instant complainant to his bankers State 15 Crl.Appeal No.267/2014 Bank of Mysore, Basaveshwaranagar Branch, Bengaluru, for encashing the same, the said both the cheques came to be dishonored and bounced with the bank endorsement as 'insufficient funds' on 03.02.2009, consequent-upon which, the complainant issued the legal notice to the accused on 05.02.2009 through RPAD and UCP, whereby the RPAD returned with a postal- endorsement thereon as 'party refused to take it, returned to sender'; Whereas, the copy sent through UCP was duly served on the accused. Despite of the same, the accused has neither replied with the said notice nor repaid the said cheque amount within the stipulated period. The accused being fully-aware that, there is no sufficient amount in her bank account to honor the said both the cheques bearing No's.382379 and 382380 worth of each Rs.4,00,000/- towards the legally enforceable debt, has issued the said both the cheques to the complainant. 16 Crl.Appeal No.267/2014
23. To substantiate his contentions, the complainant himself has got examined as P.W.1 and placed his reliance on the documentations marked at Exs.P.1 to P.13, in which Exs.P.1 & P.2 are the cheques; Exs.P.3 & P.4 are the bank endorsements; Ex.P.5 is the copy of the legal notice issued against the accused on 05.02.2009; Ex.P.6 is the speed post-receipt; Ex.P.7 is the UCP receipt; Ex.P.8 is the returned speed post-cover; Ex.P.9 is the returned cover opened in the court; Ex.P.10 is the Income Tax Returns copy; Ex.P.11 is the bank account extract; Ex.P.12 is the company registration certificate and Ex.P.13 is the certificate.
24. Denying the entire case of the complainant, it is the specific defence of the accused that, when he met the complainant on 31.01.2009 at about 10.00 a.m. near Mysore Bank Circle, as he was his friend since many years for about more than 30 years, her husband expressed his willingness before the complainant in 17 Crl.Appeal No.267/2014 respect of raising the loan from the bank and showed him some of the signed blank-cheques of himself and his wife, along-with some papers as a security to avail the loan from the said bank and kept in his vehicle and thereafter, he went nearby coffee van to take the coffee and thereafter, when he looked for the complainant, for his surprise the complainant had left from that place and thereafter taking the coffee, he further went-on his vehicle and he parked his vehicle at Unity Building nearby Corporation since his another friend met him and thereafter, he came to know that, his said documents and cheques and other papers, which were kept-in his vehicle were missing; Wherefore, he lodged the police complaint before the Halasur Gate Police Station on the same day. But, to the utter shock and surprise of the instant accused, the complainant had filed the instant case at CC No.11139/2009 against him, along-with CC No.11140/2009 against his wife by misusing the said 18 Crl.Appeal No.267/2014 signed blank-cheques by committing the theft of the same without the knowledge of the accused; Whereas, he has neither issued any cheque in favour of the complainant, nor he has raised any loan from the complainant nor he is due for any kind of legally enforceable debt, to him. Hence, prayed for allowing the instant appeal.
25. Per contra, to rebut the case and the evidence of the complainant, the accused herself has got examined as DW.1 and the husband of the accused by name M.J.Gupta, himself has been got examined as DW.2 and placed the reliance on the documentations marked at Exs.D.1 & D.2, in which Ex.D.1 is the copy of the police complaint and Ex.D.2 is the copy of endorsement given by the police.
26. On marshalling the rival contentions of both the sides, along-with their respective documentary evidence, it is crystal clear that, the criminal case at CC 19 Crl.Appeal No.267/2014 No.11140/2009 arising-out of the PCR No.5453/2009 filed by the complainant against the accused before the lower court seeking for taking cognizance for the offence committed by the accused U/Sec.138 of the Negotiable Instruments Act, 1881 and punish him in accordance with law and for the grant of compensation to the complainant as per Section 357 of Cr.P.C. towards the face-value of the cheque with other incidental charges etc.
27. Admittedly, the instant appeal is being directed by the complainant himself against the impugned conviction order against the accused, wherein the sentence imposed by the lower court is only to the extent of Rs.4,03,000/- and in-default of payment of the said fine amount, the accused shall undergo simple- imprisonment for 6 months and out of the said fine amount, Rs.4,00,000/- shall be paid to the complainant 20 Crl.Appeal No.267/2014 as compensation U/Sec.357 of Cr.P.C. and Rs.3,000/- shall be remitted to the State as fine amount.
28. It is significant to note that, on meticulous perusal of the entire lower court judgment, it has discussed at much-length and arrived at a conclusion to convict the accused as stated hereinbefore supra, holding that, both the cheques marked at Exs.P.1 & P.2 were issued by the instant accused in favour of the complainant for the purpose of discharging the legally enforceable debt due to the complainant.
29. Admittedly, the said Exs.P.1 & P.2 are the cheques worth of Rs.4,00,000/- each. Both the said cheques are dated 02.02.2009 and the claim amount by the instant complainant is totally Rs.8,00,000/-.
30. Despite of having arrived at a conclusion by the lower court that, the complainant has established his case along-with the Exs.P.1 & P.2/cheques, it has imposed the fine of Rs.4,03,000/- only. 21 Crl.Appeal No.267/2014
31. Under these circumstances, it is incumbent- upon this court to make it clear at the very outset that, in the instant appeal, there is no dispute made by the instant complainant in respect of the merits of the case, which are being upheld by the lower court and convicted the accused. But, the complainant has disputed only the quantum of sentence imposed on the instant accused.
32. Therefore, in the instant appeal, the question to be dealt is having a limited scope to determine as to whether the lower court has justifiably and reasonably reduced the sentence/fine amount to the 50% of the total claim amount of Rs.8,00,000/- by the complainant in his complaint, by utilizing it's discretion.
33. In respect of the same, the lower court has relied-upon the judgment reported in 2001(3) Kar.L.J. 367 in a case between workmen of Lokashikshana Trust, Bangalore, Vs. Lokashikshana Trust and its Newspaper Publications, Bangalore and Others.
22 Crl.Appeal No.267/2014
34. It is the vital aspect to be noted herein in the instant case in hand is that, on meticulous percolation of the entire judgment of the lower court, nothing has been whispered as the reason or ground for reducing the fine amount to the 50% of the total claim amount of Rs.8,00,000/- in the complaint, except relying on the said judgment as stated hereinbefore supra.
35. It is significant to note that, undoubtedly, the law is settled that the court can use it's discretionary power even to reduce the quantum of the sentence/fine amount than the total quantum of the claim amount in the complaint. But, simultaneously, it has also been well-settled that, there should be reasonable ground to use such discretionary power. But, unfortunately, no such justifiable reason has been assigned by the lower court in it's judgment for reducing the fine amount only to the extent of Rs.4,03,000/- i.e., 50% of the total laim amount in the complaint.
23 Crl.Appeal No.267/2014
36. Therefore, under these circumstances, I do-not feel that the discretion endeavored to use by the lower court is absolutely ultra-vires the doctrine of rationality and justification, since it is absolutely baseless. Therefore, certainly the claim of the complainant in the instant appeal deserves to be considered in the positive sense and right perspective.
37. It is, however, made clear that, the instant judgment is not with respect to the merits of the case except the quantum of the fine amount; Wherefore, the instant judgment/findings does/do-not come in the way of independent adjudication of any appeal if accused prefers, on merits.
38. Therefore, under these circumstances, the lower court judgment certainly deserves to be interfered by the instant court with respect to the quantum of fine amount is concerned.
24 Crl.Appeal No.267/2014
39. With these observations, I am inclined to answer the Point No.1 in the 'Negative' and Point No.2 in the 'Affirmative'.
40. Point No.3:- For the reasons discussed at much-length herein before supra, while answering the Point No.1 in the Negative and Point No.2 in the Affirmative, I am inclined to proceed to pass the following:
O R D E R The instant criminal appeal preferred by the appellant-original complainant against the respondent- original accused U/Sec.372 of Cr.P.C., against the impugned conviction judgment passed by the XIII ACMM Court, Bengaluru, in CC No.11140/2009, dated 04.02.2014, is hereby allowed by modifying the quantum of the fine imposed by the lower court in it's judgment, as Rs.8,03,000/- in lieu of Rs.4,03,000/-, out of which Rs.8,00,000/- shall be paid to the complainant, as towards the compensation U/Sec.357 of Cr.P.C.; without disturbing the relief of in-default sentence and the 25 Crl.Appeal No.267/2014 remaining Rs.3,000/- to be remitted to the exchequer of the State, as towards the fine amount.
Send the entire LCRs to the lower court, along- with the copy of the instant judgment immediately, without causing any delay.
(Dictated to the Judgment Writer, transcribed and typed by him and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 21st day of November, 2015) (G.D.Mahavarkar) LI Addl.City Civil & Sessions Judge, Bengaluru City.
26 Crl.Appeal No.267/2014(Judgment pronounced in the open court. Operative portion of the same is extracted as under) ORDER The instant criminal appeal preferred by the appellant-original complainant against the respondent-
original accused U/Sec.372 of Cr.P.C., against the impugned conviction judgment passed by the XIII ACMM Court, Bengaluru, in CC No.11140/2009, dated 04.02.2014, is hereby allowed by modifying the quantum of the fine imposed by the lower court in it's judgment, as Rs.8,03,000/- in lieu of Rs.4,03,000/-, out of which Rs.8,00,000/- shall be paid to the complainant, as towards the compensation U/Sec.357 of Cr.P.C.;
without disturbing the relief of in-
default sentence and the remaining Rs.3,000/- to be remitted to the exchequer of the State, as towards the fine amount.
Send the entire LCRs to the lower court, along-with the copy of the instant judgment immediately, without causing any delay.
LI Addl.City Civil & Sessions Judge, Bengaluru City.
27 Crl.Appeal No.267/2014In order to prove the guilt against the accused, the complainant himself has got examined as P.W.1 and placed his reliance on the documentations marked at Exs.P.1 to P.13, in which Exs.P.1 & P.2 are the cheques; Exs.P.3 & P.4 are the bank endorsements; Ex.P.5 is the copy of the legal notice issued against the accused on 05.02.2009; Ex.P.6 is the speed post-receipt; Ex.P.7 is the UCP receipt; Ex.P.8 is the returned speed post-cover; Ex.P.9 is the returned cover opened in the court; Ex.P.10 is the Income Tax Returns copy; Ex.P.11 is the bank account extract; Ex.P.12 is the company registration certificate and Ex.P.13 is the certificate.
11. After the complainant's evidence was closed, since the incriminating circumstances were arising-out of the evidence of the complainant's side witnesses, the 28 Crl.Appeal No.267/2014 statements of the accused under the provisions of Section 313 of Cr.P.C. were recorded.
12. Per contra, to rebut the case and the evidence of the complainant, the husband of the accused by name M.J.Gupta, himself has been got examined as DW.1 and thereby placed the reliance on the documentations marked at Exs.D.1 & D.2, in which Ex.D.1 is the copy of the police complaint and Ex.D.2 is the copy of endorsement given by the police.
13. The lower court having heard the arguments advanced by both the learned counsel for the complainant as-well-as the learned counsel for the accused, basing on the material available on record from the complainant, the lower court has framed the points for it's consideration as under:
(1) Whether the complainant proves that, the accused had issued 2 cheques bearing No.363459 for Rs.4,00,000/-, dated 02.02.2009 and cheque bearing No.363460, dated 02.02.2009 for 29 Crl.Appeal No.267/2014 Rs.4,00,000/- towards the discharge of legally enforceable debt due by him and when the cheque was presented for encashment, it came to be returned as 'funds insufficient' and thereby, the accused has committed the offence punishable U/Sec.138 of Negotiable Instruments Act, 1881?
(2) What order?
14. On hearing the arguments of both sides, the lower court has given the findings on the points for consideration raised by it, as under:
Point No.1 .. In the partly Affirmative.
Point No.2 .. As per the final order,
for the following:
-------- and thereby convicted the accused by sentencing her to pay a fine of Rs.4,03,000/- and in default of payment of the same, simple imprisonment for 6 months and out of the said fine amount, the complainant is entitled for Rs.4,00,000/- the cheque amount as compensation and the balance amount of Rs.3,000/- is ordered to be defrayed to the State for the expenses incurred in the prosecution.30 Crl.Appeal No.267/2014
15. Being aggrieved by the impugned judgment passed by the lower court, the appellant-original complainant before the lower court, has preferred the instant appeal against the respondent-original accused before the lower court, on the following:
GROUNDS OF APPEAL
(f) The judgment and order under the appeal is illegal, arbitrary and the same is passed without the facts and circumstances of the case properly.
(g) The lower court has wrongly exercised the discretion to reduce the sentence only to the 50%.
(h) The lower court has wrongly relied-upon the citation reported in 2001(3) Kar.L.J. 367 of the Hon'ble High Court of Karnataka, in which it is held that, Bombay Public Trust Act, 1950 -
Sections 50 & 51 - Removal of Secretary to Trust - Suit for - Consent of Charity Commissioner is mandatory, and without consent, suit is not maintainable.
31 Crl.Appeal No.267/2014
(i) Though the cheque amount is Rs.8,00,000/-, the lower court has imposed the sentence to pay a sum of Rs.4,03,000/- only, without assigning the reason to arrive at such a conclusion by the lower court; Wherefore, it is absolutely contrary to law.
(j) Though the lower court has held that, the cheques as per Exs.P.1 & P.2 were issued by the accused to discharge the legally enforceable debt due to the complainant to the tune of Rs.8,00,000/-, it ought to have imposed the maximum sentence taking-into consideration the nature of the transaction held between both the parties.
Hence, prayed for allowing the instant appeal.
16. Per contra, the respondent-accused has not filed any counter-objections to the instant appeal memo.
17. I have heard the arguments of both the learned counsels for the appellant-complainant as-well-as the respondent-accused.
32 Crl.Appeal No.267/2014
18. Basing on the material available on record and grounds of appeal, the points that arise for my consideration are:
(1) Whether the lower court has justified in affirming partly the Point No.1 raised for it's consideration holding that, the complainant has established that, the accused had issued 2 cheques bearing No.363459, dated 02.02.2009, for Rs.4,00,000/- and cheque bearing No.363460, dated 02.02.2009, for Rs.4,00,000/- towards the dischargence of legally enforceable debt due to him and on presenting the said cheques for encashment, they came to be dishonored with bank endorsements as 'funds insufficient', whereby the accused has committed the offence punishable U/Sec.138 of the Negotiable Instruments Act, 1881?
(2) Whether the impugned judgment of the lower court is arbitrary, baseless, 33 Crl.Appeal No.267/2014 capricious, devoid of merits, erroneous, frivolous and perverse without being on the sound principles of law and warrants for the interference by the instant court?
(3) To what order?
19. My findings on the above points are as under:
Point No.1 .. In the Negative.
Point No.2 .. In the Affirmative.
Point No.3 .. As per the final order, for
the following:
REASONS
20. The status and ranking assigned in the lower court to the complainant and accused are being adopted and adhered-to in the instant discussion for the purpose of brevity and convenience to avoid the confoundation and perplexity.
21. Point No's.1 & 2:- To avoid the reiteration of the material available in hand and to appreciate the 34 Crl.Appeal No.267/2014 evidence adduced before the lower court, in a better position, I hereby take-up the instant Point No's.1 & 2 together admixingly for discussion.
22. It is the specific contention of the complainant by way of his complaint that, the complainant and the husband of the accused being known to each-other for the last 30 years, the accused approached the complainant for the hand-loan of Rs.8,00,000/- for setting-up a new clothes business, in the 2nd week of January 2008; Wherefore, the complainant advanced the hand-loan of Rs.8,00,000/- to the accused accordingly in the 3rd week of January 2008, whereby, she agreed to repay the said hand-loan amount within 6 to 8 months there-from. After the efflux the stipulated period, the complainant despite of having requested the accused to repay the said amount, ultimately the accused issued 2 cheques bearing No's.363459, dated 02.02.2009 and cheque bearing No.363460, dated 02.02.2009, for 35 Crl.Appeal No.267/2014 Rs.4,00,000/- each respectively, drawn on Central Bank of India, Rajajinagar Branch, Bengaluru, and on presenting the said both the cheques by the instant complainant to his bankers State Bank of Mysore, Basaveshwaranagar Branch, Bengaluru, for encashing the same, the said both the cheques came to be dishonored and bounced with the bank endorsement as 'insufficient funds' on 03.02.2009, consequent-upon which, the complainant issued the legal notice to the accused on 05.02.2009 through RPAD and UCP, whereby the RPAD returned with a postal-endorsement thereon as 'party refused to take it, returned to sender'; Whereas, the copy sent through UCP was duly served on the accused. Despite of the same, the accused has neither replied with the said notice nor repaid the said cheque amount within the stipulated period. The accused being fully-aware that, there is no sufficient amount in her bank account to honor the said both the cheques bearing No's.363459 36 Crl.Appeal No.267/2014 and 363460 worth of each Rs.4,00,000/- towards the legally enforceable debt, has issued the said both the cheques to the complainant.
23. To substantiate his contentions, the complainant himself has got examined as P.W.1 and placed his reliance on the documentations marked at Exs.P.1 to P.13, in which Exs.P.1 & P.2 are the cheques; Exs.P.3 & P.4 are the bank endorsements; Ex.P.5 is the copy of the legal notice issued against the accused on 05.02.2009; Ex.P.6 is the speed post-receipt; Ex.P.7 is the UCP receipt; Ex.P.8 is the returned speed post-cover; Ex.P.9 is the returned cover opened in the court; Ex.P.10 is the Income Tax Returns copy; Ex.P.11 is the bank account extract; Ex.P.12 is the company registration certificate and Ex.P.13 is the certificate.
24. Denying the entire case of the complainant, it is the specific defence of the accused that, when her husband met the complainant on 31.01.2009 at about 37 Crl.Appeal No.267/2014 10.00 a.m. near Mysore Bank Circle, as he was her husband's friend since many years for about more than 30 years, her husband expressed his willingness before the complainant in respect of raising the loan from the bank and showed him some of the signed blank-cheques of himself and the instant accused, along-with some papers as a security to avail the loan from the said bank and kept in his vehicle and thereafter, he went nearby coffee van to take the coffee and thereafter, when he looked for the complainant, for his surprise the complainant had left from that place and thereafter taking the coffee, he further went-on his vehicle and he parked his vehicle at Unity Building nearby Corporation since his another friend met him and thereafter, he came to know that, his said documents and cheques and other papers, which were kept-in his vehicle were missing; Wherefore, he lodged the police complaint before the Halasur Gate Police Station on the same day. But, to the 38 Crl.Appeal No.267/2014 utter shock and surprise of the instant accused, the complainant had filed the instant case at CC No.11139/2009 against her, along-with CC No.11140/2009 against her husband by misusing the said signed blank-cheques by committing the theft of the same without the knowledge of the husband of the accused; Whereas, she has neither issued any cheque in favour of the complainant, nor she has raised any loan from the complainant nor she is due for any kind of legally enforceable debt, to him. Hence, prayed for allowing the instant appeal.
25. Per contra, to rebut the case and the evidence of the complainant, the husband of the accused by name M.J.Gupta, himself has been got examined as DW.1 and thereby placed the reliance on the documentations marked at Exs.D.1 & D.2, in which Ex.D.1 is the copy of the police complaint and Ex.D.2 is the copy of endorsement given by the police.
39 Crl.Appeal No.267/2014
26. On marshalling the rival contentions of both the sides, along-with their respective documentary evidence, it is crystal clear that, the criminal case at CC No.11139/2009 arising-out of the PCR No.5452/2009 filed by the complainant against the accused before the lower court seeking for taking cognizance for the offence committed by the accused U/Sec.138 of the Negotiable Instruments Act, 1881 and punish her in accordance with law and for the grant of compensation to the complainant as per Section 357 of Cr.P.C. towards the face-value of the cheque with other incidental charges etc.
27. Admittedly, the instant appeal is being directed by the complainant himself against the impugned conviction order against the accused, wherein the sentence imposed by the lower court is only to the extent of Rs.4,03,000/- and in-default of payment of the said fine amount, the accused shall undergo simple- 40 Crl.Appeal No.267/2014 imprisonment for 6 months and out of the said fine amount, Rs.4,00,000/- shall be paid to the complainant as compensation U/Sec.357 of Cr.P.C. and Rs.3,000/- shall be remitted to the State as fine amount.
28. It is significant to note that, on meticulous perusal of the entire lower court judgment, it has discussed at much-length and arrived at a conclusion to convict the accused as stated hereinbefore supra, holding that, both the cheques marked at Exs.P.1 & P.2 were issued by the instant accused in favour of the complainant for the purpose of discharging the legally enforceable debt due to the complainant.
29. Admittedly, the said Exs.P.1 & P.2 are the cheques worth of Rs.4,00,000/- each. Both the said cheques are dated 02.02.2009 and the claim amount by the instant complainant is totally Rs.8,00,000/-.
30. Despite of having arrived at a conclusion by the lower court that, the complainant has established his 41 Crl.Appeal No.267/2014 case along-with the Exs.P.1 & P.2/cheques, it has imposed the fine of Rs.4,03,000/- only.
31. Under these circumstances, it is incumbent- upon this court to make it clear at the very outset that, in the instant appeal, there is no dispute made by the instant complainant in respect of the merits of the case, which are being upheld by the lower court and convicted the accused. But, the complainant has disputed only the quantum of sentence imposed on the instant accused.
32. Therefore, in the instant appeal, the question to be dealt is having a limited scope to determine as to whether the lower court has justifiably and reasonably reduced the sentence/fine amount to the 50% of the total claim amount of Rs.8,00,000/- by the complainant in his complaint, by utilizing it's discretion.
33. In respect of the same, the lower court has relied-upon the judgment reported in 2001(3) Kar.L.J. 367 in a case between workmen of Lokashikshana Trust, 42 Crl.Appeal No.267/2014 Bangalore, Vs. Lokashikshana Trust and its Newspaper Publications, Bangalore and Others.
34. It is the vital aspect to be noted herein in the instant case in hand is that, on meticulous percolation of the entire judgment of the lower court, nothing has been whispered as the reason or ground for reducing the fine amount to the 50% of the total claim amount of Rs.8,00,000/- in the complaint, except relying on the said judgment as stated hereinbefore supra.
35. It is significant to note that, undoubtedly, the law is settled that the court can use it's discretionary power even to reduce the quantum of the sentence/fine amount than the total quantum of the claim amount in the complaint. But, simultaneously, it has also been well-settled that, there should be reasonable ground to use such discretionary power. But, unfortunately, no such justifiable reason has been assigned by the lower court in it's judgment for reducing the fine amount only 43 Crl.Appeal No.267/2014 to the extent of Rs.4,03,000/- i.e., 50% of the total laim amount in the complaint.
36. Therefore, under these circumstances, I do-not feel that the discretion endeavored to use by the lower court is absolutely ultra-vires the doctrine of rationality and justification, since it is absolutely baseless. Therefore, certainly the claim of the complainant in the instant appeal deserves to be considered in the positive sense and right perspective.
37. It is, however, made clear that, the instant judgment is not with respect to the merits of the case except the quantum of the fine amount; Wherefore, the instant judgment/findings does/do-not come in the way of independent adjudication of any appeal if accused prefers, on merits.
38. Therefore, under these circumstances, the lower court judgment certainly deserves to be interfered by the 44 Crl.Appeal No.267/2014 instant court with respect to the quantum of fine amount is concerned.
39. With these observations, I am inclined to answer the Point No.1 in the 'Negative' and Point No.2 in the 'Affirmative'.
40. Point No.3:- For the reasons discussed at much-length herein before supra, while answering the Point No.1 in the Negative and Point No.2 in the Affirmative, I am inclined to proceed to pass the following:
O R D E R The instant criminal appeal preferred by the appellant-original complainant against the respondent- original accused U/Sec.372 of Cr.P.C., against the impugned conviction judgment passed by the XIII ACMM Court, Bengaluru, in CC No.11139/2009, dated 04.02.2014, is hereby allowed by modifying the quantum of the fine imposed by the lower court in it's judgment, as Rs.8,03,000/- in lieu of Rs.4,03,000/-, out of which Rs.8,00,000/- shall be paid to the complainant, as 45 Crl.Appeal No.267/2014 towards the compensation U/Sec.357 of Cr.P.C.; without disturbing the relief of in-default sentence and the remaining Rs.3,000/- to be remitted to the exchequer of the State, as towards the fine amount.
Send the entire LCRs to the lower court, along- with the copy of the instant judgment immediately, without causing any delay.
(Dictated to the Judgment Writer, transcribed and typed by him and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 21st day of November, 2015) (G.D.Mahavarkar) LI Addl.City Civil & Sessions Judge, Bengaluru City.
46 Crl.Appeal No.267/2014(Judgment pronounced in the open court. Operative portion of the same is extracted as under) ORDER The instant criminal appeal preferred by the appellant-original complainant against the respondent-
original accused U/Sec.372 of Cr.P.C., against the impugned conviction judgment passed by the XIII ACMM Court, Bengaluru, in CC No.11139/2009, dated 04.02.2014, is hereby allowed by modifying the quantum of the fine imposed by the lower court in it's judgment, as Rs.8,03,000/- in lieu of Rs.4,03,000/-, out of which Rs.8,00,000/- shall be paid to the complainant, as towards the compensation U/Sec.357 of Cr.P.C.;
without disturbing the relief of in-
default sentence and the remaining Rs.3,000/- to be remitted to the exchequer of the State, as towards the fine amount.
Send the entire LCRs to the lower court, along-with the copy of the instant judgment immediately, without causing any delay.
LI Addl.City Civil & Sessions Judge, Bengaluru City.
47 Crl.Appeal No.267/2014