Bangalore District Court
Sri S.B. Krishnaiah vs Sri T.R. Ramaiah on 3 September, 2019
IN THE COURT OF THE LIX ADDL.CITY CIVIL
& SESSIONS JUDGE, BANGALORE CITY (CCH-60)
Dated this the 3rd day of September 2019
PRESENT
Sri B. B.Jakati, B.A., LL.M.,
LIX ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE CITY
Crl. Appeal No.1688/2018
APPELLANT/S: Sri S.B. Krishnaiah,
aged about 62 years,
S/o late S.B. Bhyrappa,
R/at NO.7, 5th cross,
10th Main, 4th Phase, 7th Block,
BSK III Stage,
Behind Co-operative Training
College,
Bengaluru - 85.
(By Smt. Lakshmi S.B., Advocate)
-Vs-
RESPONDENT/S: Sri T.R. Ramaiah,
Aged about 72 years,
S/o Late Rangashamaiah,
No.34, 3rd Main road,
1st Stage, 2nd Phase,
Manjunatha Nagara,
West of Chord road,
Bengaluru - 10.
(By Sri G.N.,Advocate)
Crl.Ap.No.1688/2018
2
JUDGMENT
This Criminal Appeal is filed under Section 374(3) of Cr.P.C. challenging the legality and correctness of the judgment of conviction and order of sentence passed by the Learned XXXIII ACMM, Bengaluru in C.C.No.79885/2009 dated 01.08.2018.
2. The essential facts required for disposal of this appeal are that the respondent/complainant has contended that he advanced loan of Rs.9,50,000/- on 03.09.2003 to the accused and accused agreed to repay the loan within one year. The accused did not repay the loan within the stipulated period. On persuasion, the accused finally issued cheque bearing No.404251 dated 21.02.2009 for Rs.9,50,000/- for repayment of loan in favour of the complainant. The cheque was presented for encashment on 21.02.2009. It was dishonoured on 25.02.2009 on the ground that the "Account was closed". The complainant demanded the cheque amount by issuing legal Crl.Ap.No.1688/2018 3 notice on 12.03.2009, which was served on 18.03.2009 and the accused given reply on 23.03.2009. The accused denied the liability and refused to pay the cheque amount and hence, complaint was filed on 30.04.2009. On these allegations the complainant has stated that the accused has committed the offence under Section 138 of N.I. Act. Along with the complaint an application was filed for condonation of delay and such application was allowed and the process was issued against the accused.
3. The accused appeared through his counsel before the court below and contested the matter. To prove the guilt of the accused, the complainant examined himself as P.W.1 and examined two more witnesses as P.W.2 and 3 and got marked the documents at Ex.P.1 to P.9. The Trial Court recorded the statement of accused under Section 313 of Cr.P.C. and he has denied the incriminating evidence appearing against him. In order to substantiate his defence, the accused examined Crl.Ap.No.1688/2018 4 himself as DW.1 and examined one more witness as DW.2 and got marked documents at Ex.D.1 to D.8. The trial court after hearing the parties and considering the material on record has held that the accused has committed the offence under Section 138 of N.I. Act and sentenced him to pay fine of Rs.50,000/- in default shall undergo S.I. for six months. Further the trial court has directed the accused to pay an amount of Rs.9,50,000/- to the complainant as compensation. In default the accused shall undergo S.I. for 3 months. Against this judgment of conviction and order of sentence, the accused has preferred the appeal on various grounds.
4. The notice has been served on the complainant, he appeared through his counsel. The LCRs have been secured.
5. The learned counsel for the accused has vehemently argued that Ex.D.5, the cheque book view furnished by the banker of the accused shows that cheque book containing ten leaves commencing from cheque Crl.Ap.No.1688/2018 5 No.404251 was issued on 14.07.2003 and the accused closed his account with his banker on 19.07.2014 after using of the cheque leaves. The disputed cheque is bearing No.404251. There was no occasion for the accused to use the cheque book taken in the year 2003 and issue cheque in favour of the complainant in the year 2009 after closure of his account itself which creates doubt in the case of the complainant. She has further argued that the accused taken contention in the complaint that he has advanced loan of Rs.9,50,000/- on 03.09.2003 and the very complainant filed another complaint in C.C.No.17469/2009 against S. Harry Kumar making allegation that even he has paid loan of Rs.9,50,000/- on the same day. Therefore, the complainant is required to establish that as on 03.09.2003 he had an amount of Rs.19,00,000/- with him and no such evidence is brought on record, which shows that complainant had no financial capacity to advance loan of Rs.9,50,000/- to the accused which has not been appreciated Crl.Ap.No.1688/2018 6 by the Trial Court. She has argued that in the evidence of PW.1 and 3 there is a discrepancy as to the person who wrote Ex.P.1 and P.2, which are Promissory Note and receipt and such discrepancy creates doubt in the case of the complainant, which has not been appreciated by the Trial Court. Lastly she has argued that P.W.3 filed another criminal case and in that case the complainant given his evidence in her support and because of such interestedness, the P.W.3 supported the case of the complainant and hence, P.W.3 is interested witness, which has not been taken into consideration by the Trial Court. On these main grounds, the learned counsel for the accused submitted that the judgment is not sustainable under law and the accused has to be acquitted by setting aside the judgment of conviction and order of sentence.
6. As against this argument, the learned counsel for the complainant has submitted that even though the cheque book containing the disputed cheque was obtained by the Crl.Ap.No.1688/2018 7 accused in the year 2003, in order to cheat the complainant he used one of the leaves in the year 2009 and because the accused himself has cheated the complainant,benefit of using of cheque of the year 2003 in 2009 cannot be extended to the accused. He has argued that in the reply at Ex.P.9, the accused has taken the defence that the disputed cheque and other documents were given by him to the complainant in the year 2001 as security of the loan which falsifies his case that the cheque book was obtained in the year 2003 and there was no possibility of giving cheque in the year 2009. He has further argued that in the evidence of P.W.1 the financial capacity has been elicited. The complainant was Development Officer of the LIC and he appointed in the year 1987 as LIC Agent and subsequently promoted. Therefore, there was sufficient fund with the complainant as on 03.09.2003 to advance loan of Rs.9,50,000/- to the accused, which has been proved. He has argued that the accused initially disputed the signature in the Crl.Ap.No.1688/2018 8 cheque and obtained expert opinion and the opinion is against the accused. The accused in order to deny his liability disputed Ex.P.1 to P.4 and Ex.P.1 to P.3 are sufficient to prove the advancement of loan to the accused. On these grounds he justified the finding recorded by the Trial Court and prayed to dismiss the appeal.
7. Looking to the contentions taken by both parties the following points arise for my determination:
1. Whether the complainant established that the disputed cheque at Ex.P.4 has been issued by the accused for repayment of the loan obtained on 03.09.2003?
2. Whether the Trial Court has committed any error in discarding the defence evidence and convicting the accused for the offence under Section 138 of N.I.Act?
Crl.Ap.No.1688/2018 9
8. My finding to the above points are as under:-
POINT No.1 :- In the Affirmative
POINT No.2 :- In the Negative
for the following:-
REASONS
9. POINT No.1 AND 2 :- During the course of
evidence both parties have admitted that prior to 1987, the complainant was appointed as agent in LIC and later on he was promoted as Development Officer. It is also admitted that accused was also recruited by the complainant as LIC Agent and both of them were working in LIC.
10. In the evidence the accused has totally denied the issuance of cheque and other security documents in favour of complainant. He has also denied the receipt of loan of Rs.9,50,000/- from the complainant. He has stated that his signatures have been forged in the cheque. But in the reply given by him produced at Ex.P.9 the accused in Para No.3 has Crl.Ap.No.1688/2018 10 stated that he was in need of money for his business as LIC Agent and the complainant promised to raise loan and help. Therefore, the accused given some blank papers, stamp paper of Rs.20/-, Promissory Note and the cheque bearing No.404251, which is at Ex.P.4 to the complainant in December 2001 and such documents have been mis-utilized by the complainant. The contention in Ex.P.9 taken by the accused is contrary to the examination-in-chief of accused. Ex.P.9 was issued prior to recording of evidence of D.W.1. Therefore, Ex.P.9 prevail over the evidence of DW.1. The accused not disputed the reply at Ex.P.9 and the contentions referred above. Therefore, from Ex.P.9 it can be safely inferred that the accused given cheque at Ex.P.4 to the complainant and other documents when he was in need of money.
11. The complainant has produced Promissory Note and consideration receipt at Ex.P.1 and P.2. In these documents it has been shown that on 03.09.2003, the accused Crl.Ap.No.1688/2018 11 availed loan of Rs.9,50,000/- from the complainant. Ex.P.3 is loan agreement executed by the accused in favour of the complainant. In this document it has been stated that the accused received loan of Rs.9,50,000/- from the complainant on 03.09.2003. The accused denied Ex.P.1 to P.3. Therefore, in order to prove Ex.P.1 to P.3, the complainant examined signatories to these documents who are P.W.2 and 3. The P.W.2 and 3 have stated that the accused received loan of Rs.9,50,000/- in their presence and signed on Ex.P.1 to P.3. Such evidence support the statement made by P.W.1. In the Cross-examination of P.W.1 to 3, nothing has been elicited to disbelieve their statement about execution of Ex.P.1 to P.3 by the accused. In the Cross-examination of P.W.3 it has been demonstrated that P.W.3 filed another criminal case pending on the file of 13th ACMM, Bengaluru and in that case the P.W.1 deposed as her witness which shows that in the case of P.W.3, the complainant given his evidence and in the case of Crl.Ap.No.1688/2018 12 complainant, the PW.3 has deposed. These statements of P.W.3 at the most show that the complainant and P.W.3 helped each other in criminal case filed by them against accused shown in their respective cases. Only because both witnesses were examined in the cases filed by them, inference cannot be drawn that without their presence at the time of advancement of loan they have deposed. Therefore, on that ground the evidence of P.W.3 cannot be discarded. Apart from that, the evidence of P.W.3 is corroborated with the evidence of P.W.2. Ex.P.1 is the Negotiable Instrument and it has got presumption under Section 139 of N.I. Act.
12. The accused obtained handwriting expert opinion on the signatures appearing in Ex.P.4. Such expert has given opinion that signature of the accused is appearing in Ex.P.4. Therefore, considering the evidence on record I hold that the accused received loan of Rs.9,50,000/- from the complainant on 03.09.2013 by executing Ex.P.1 to P.3.
Crl.Ap.No.1688/2018 13
13. The accused disputed the financial capacity of the complainant to advance loan of Rs.9,50,000/- on 03.09.2009. Therefore, the complainant is required to establish his financial capacity. The P.W.1 in his examination-in-chief not disclosed how he had saved money to advance the loan. The accused testified the financial capacity of the complainant in the Cross- examination. The Cross-examination in his Cross-examination has stated that in the year 1987 he was promoted as Development Officer in LIC and previously he was LIC Agent. He retired from the service on 30.11.2007. He had authority to recruit the LIC Agent and recruited about 85 to 100 LIC Agents in his Officer. He has stated that in 1987 he was drawing salary of Rs.27,000/- per month. The accused has admitted that complainant was LIC Agent and promoted as Development Officer in LIC in the year 1987. Even the accused has admitted that the complainant was recruiting LIC Agents. Therefore, statements made by P.W.1 are sufficient to hold that the Crl.Ap.No.1688/2018 14 complainant was LIC Agent and promoted as Development Officer in the year 1987 and he was drawing salary of Rs.27,000/- per month in 1987. The salary was increased from 1987 till 2009. Such increase can be inferred by taking judicial notice. It is not the case of the accused that the salary of the complainant was not increased. The complainant has not produced salary certificate, passbook of his account and IT Returns. In the absence of such records also, I have no hesitation to believe that the complainant being the Development Officer was getting monthly fixed salary in the year 2009 from 1987. Such salary was lumpsum and not meager.
14. The P.W.1 in the Cross-examination in Page No.7 has stated that Rs.9,50,000/- was borrowed by his friend / Yatiraj and Dhananjay and the same amount was given to accused by obtaining Ex.P.1 to P.3. He has stated that he had given cheque to Yatiraj and Dhananjay and after repayment he Crl.Ap.No.1688/2018 15 has received such cheque from Yatiraj and Dhananjay. By these statements the complainant has stated that the amount received from Yatiraj and Dhananjay has been used for advancement of loan to the accused. The complainant has not examined Yatiraj or Dhananjay. The accused in the Cross- examination of P.W.1 in the same page has suggested that the complainant received amount of Rs.9,50,000/- from Yatiraj and Dhananjay as a loan. It has been suggested that Dhananjay was the Contractor and Yatiraj was the Mandi Merchant. By these suggestions the accused admitted the plea of the complainant that he received Rs.9,50,000/- as a loan from his friend and the same amount was given to the accused.
15. The complainant not only produced the cheque issued by the accused but also produced the Promissory Note, receipt and loan agreement at Ex.P.1 to P.4. Therefore, looking to the job of the complainant and evidence referred above, I hold that the evidence of complainant along with Ex.P.1 to P.3 Crl.Ap.No.1688/2018 16 are sufficient to prove that the complainant had financial capacity to pay Rs.9,50,000/- to the complainant as on 03.09.2009. Whether the complainant had financial capacity to give loan of Rs.9,25,000/-, who is another person, who is accused in another criminal case cannot be gone into in detail in the present case. Suffice it to say that the complainant has proved his financial capacity for lending money of Rs.9,50,000/- as on 03.09.2009.
16. The P.W.1 in his Cross-examination in page No.8 has stated that P.W.2 / N. Vijay Gopalan written the Promissory note and consideration receipt at Ex.P.1 and P.2. The P.W.3 in her Cross-examination in Page No.3 has stated that Demand Promissory Note with Consideration Receipt were filled by Vijay Gopalan. So, both witnesses have stated that both documents were written by P.W.2. But the counsel for the accused in the argument has argued that there is a discrepancy in the evidence of P.W.1 and 3. But on perusal of the evidence, I do Crl.Ap.No.1688/2018 17 not find any discrepancy about writing of Ex.P.1 and P.2 by P.W.2.
17. The complainant proved the loan transaction by Ex.P.1 to P.3 and the evidence of himself, P.W.2 and 3. He has proved the fact that Ex.P.4 / cheque has been given by the accused for discharge of the loan. Ex.P.1 and P.4 are the Negotiable Instruments and therefore, presumption has to be raised under Section 139 of N.I. Act. Accordingly, the Trial Court has rightly raised the presumption. The accused is required to rebut such presumption. In order to rebut the presumption he has relied upon the evidence of himself and DW.2 / Bank Manager. The evidence of accused and Bank Manager is relating to issuance of cheque book in the year 2003 and how the cheque at Ex.P.4 came to be issued in the year 2009. Such evidence has already been discussed in other part of the judgment. Therefore, the evidence of DW.1 and 2 is Crl.Ap.No.1688/2018 18 not sufficient to rebut the presumption available to Ex.P.1 and P.4.
18. The accused has taken the defence that even the cheque not bearing his signature and he himself obtained expert opinion. The expert opinion is against him. Therefore, it is evident that the accused has taken false defence and even he has not proved the defence what has been taken by him. Considering these evidence on record I hold that the accused is not successful in rebutting the presumption available to Ex.P.1 and P.4. Accordingly, I hold that the cheque at Ex.P.4 was issued by the accused for discharge of loan obtained by him. For these reasons I hold that there are no grounds to interfere with the judgment of the Trial Court. Accordingly, I answer the above points and proceed to pass the following:
ORDER The Criminal Appeal filed under Section 374(3) of Cr.P.C. is hereby dismissed.
Crl.Ap.No.1688/2018 19 Send the copy of the Judgment along with the records to the lower court. (Dictated to the Judgment-writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 3rd day of September, 2019).
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
Crl.Ap.No.1688/2018 20 judgment proceeded in open court {vide separate detailed judgment} ORDER The Criminal Appeal filed under Section 374(3) of Cr.P.C. is hereby dismissed.
Send the copy of the Judgment along with the records to the lower court.
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.