Bangalore District Court
Lingappa D vs Dr.Jayaramaiah N on 27 February, 2016
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY.
(CCH-67)
DATED THIS THE 27th DAY OF February 2016.
PRESENT
SRI.VIJAYAN.A., B.A.(LAW), LL.M.
LXVI Addl.City Civil & Sessions Judge
Crl.A.No.712/2015
APPELLANT Lingappa D
S/o Late Doddanna
Aged about 86 years
R/at No.98
Addiganahalli Main Road
Rajanukunte
Hesaraghatta Hobli
Bangalore-560 064
(Rept. By Sri.Varaprasad, Adv.)
VS.
RESPONDENT Dr.Jayaramaiah N
S/o Sri.Narayanappa
Aged about 50 years
R/at No.5, Manjunatha Layout
D.V.G.Main Road
R.M.V., 2nd Stage
Nagashettyhalli
Bangalore-560 094
(Rept. By Sri.M.S.B. Anand Kumar,
Adv.)
2 Crl.A.No.712/2015
JUDGMENT
Appellant has preferred this appeal under Sec.374(3) of Cr.P.C. being aggrieved by judgment of conviction and sentence passed in CC.No.31769/2011 dated:15.04.2015 by the learned XVIII ACMM, Bengaluru praying this court to setting aside the above said order and allowing this appeal in the interest of justice and equity.
2. Brief facts of the appellant/accused case is that:-
The respondent/complainant herein initiated criminal proceedings against the appellant/accused for the offences punishable under Section 138 of N.I.Act alleging that the appellant is due a sum of Rs.1,00,000/. In lieu of the same, the appellant has issued a cheque bearing No.012843 dated 05.05.2011 for a sum of Rs.1,00,000/ drawn on Axis Bank Ltd. pertaining to his SB A/c No.00619271. When cheque was presented for realization, the same was returned with cheque returning memo dated 10.05.2011 stating 'funds insufficient'. Thereafter, once 3 Crl.A.No.712/2015 again the cheque presented on 13.06.2011. That also returned with cheque dated 16.06.2011 stating funds insufficient. Thereafter, issued legal notice. Appellant did not pay the amount. Hence, respondent herein filed complaint against this appellant and same was registered in CC.31769/2011.
3. Thereafter during the course of trial, complainant examined himself as P.W.1 and got marked Ex.P1 to P7 and closed his side of evidence. On the other hand the accused himself examined as DW1. The learned trial judge after appreciating both oral and documentary evidence adduced and produced by both sides convicted and sentenced the accused for the offence punishable u/s 138 of N.I. Act and sentenced accordingly.
4 Crl.A.No.712/2015
4. Being aggrieved by judgment of conviction and sentence the appellant herein has approached this court for the following among other grounds:-
a) The impugned judgment order and sentence is contrary to the material on record and opposed to well established principles of law and therefore the same is liable to set aside.
b) Learned magistrate failed to provide sufficient opportunity to the appellant to put forth his case and hurriedly passed judgment, it is in violation of principles of natural justice.
c) The appellant is very rich man and there is no occasion to him to borrow money from respondent. There is no iota of evidence in the complainant case against the accused and also there is no legally recoverable debt as on the date of filing the complaint and respondent also failed to prove his loan transaction with appellant and also failed 5 Crl.A.No.712/2015 to prove that he was a professional money lender having license under law.
d) Viewing from any angle there is no crystal clear evidence to prove the guilt against the accused.
Hence, learned advocate for appellant prayed this court to set aside the judgment of conviction and sentence in the interest of justice and equity.
5. Heard arguments of learned counsel for the appellant. Though several opportunities issued to both sides to advance their arguments in this appeal, they failed to appear either personally or through their advocate. Hence, arguments taken as heard and case was posted for judgment in accordance with law.
6. On the facts and circumstances of the case and material evidence on record the points that arise for my consideration:
6 Crl.A.No.712/2015
1) Has appellant prove that the trial court has not provided any opportunity to put forth his case?
2) Has appellant prove that he has not
borrowed Rs.1,00,000/- from
respondent as alleged in the appeal
memo?
3) What Order?
7. My findings to the above points are:
1) In the Negative
2) In the Negative
3) As per final Order,
for the following:
REASONS
8. POINT No.1: The appellant/accused deposed in his evidence that respondent/complainant herein initiated criminal proceedings against him for the offences punishable under Section 138 of N.I.Act alleging that the he is due a sum of Rs.1,00,000/. In lieu of the same, he has issued a cheque bearing No.012843 dated 05.05.2011 for a 7 Crl.A.No.712/2015 sum of Rs.1,00,000/ drawn on Axis Bank Ltd. pertaining to his SB A/c No.00619271. When cheque was presented for realization, the same was returned with cheque returning memo dated 10.05.2011 stating 'funds insufficient'.
Thereafter, once again the cheque presented on 13.06.2011. That also returned with cheque dated 16.06.2011 stating funds insufficient. Thereafter, issued legal notice. Appellant did not pay the amount. Hence, respondent herein filed complaint against him and same was registered in CC.31769/2011.
9. After filing this complaint on 25.02.2013 when case was posted for complainant evidence, both the parties prayed time for settlement of dispute amicably. Thereafter, settlement not reported for two -three dates, complainant on 17.09.2013 examined himself as PW1 and got marked documents Ex.P.1 to P.7. On 18.11.2013, 30.01.2014, and 11.03.2014 case was posted for cross-examination of 8 Crl.A.No.712/2015 PW1. On 05.04.2014 this case is also referred to Lokadalath for settlement. On that day both parties were present, but matter not settled before Lokadalath. Thereafter, the case sent back to trail court again for cross-examination of PW1. Case posted for 20.05.2014, 15.07.2014 and on 11.08.2014, prayer of learned counsel for accused for cross-examination of PW1 rejected and case posted for accused statement. Thereafter, accused remained absent, NBW issued against the accused. On 03.11.2014 accused present, complainant counsel present NBW issued against accused recalled subject to payment of penalty of Rs.100/, accused statement under section 313 Cr.P.C. was recorded. On that day learned advocate Sri.N.B.N. filed application u/s 91 of Cr.P.C. and allowed partly, summons were issued to Branch Manager, Axis Bank, Yelehanka New Town and witness allowance fixed for Rs.400/. On 16.09.2014 accused present, complainant absent, on 21.10.2014 accused absent, complainant present, defense evidence 9 Crl.A.No.712/2015 taken as nil and case posted for argument. Thereafter, witness present before the court and prayed time, thereafter remained absent. On 03.02.2015 learned Advocate N.B.N. filed application u/s 311 Cr.P.C. to recall PW1 for further cross-examination. Heard both sides and application filed under Section 311 Cr.P.C. is allowed, for cross of PW1, call on 12.02.2015. On 12.02.2015 accused was present, PW1 was present, PW1 cross-examined in full, thereafter this case posted for defense evidence and defendant has taken 3 dates for examination-in-chief as well as cross-examination. Finally heard arguments and case posted for judgment. Finally on 15.04.2015 judgment pronounced convicting the accused for the offence punishable under section 138 of N.I.Act, NBW issued against the accused and FLW for fine amount. On 10.06.2015 accused present, case advanced on board, NBW issued against the accused recalled on penalty of Rs.200/ and also learned advocate for accused/appellant produced 10 Crl.A.No.712/2015 the orders passed by learned Session Judge in Cr.A. No.715/2015 dated 03.06.2015 on the file of this court. Like this the trial court order sheet has spoken with regard to appearance of accused and complainant before this court and opportunity provided by court below, this court find no flaw committed by learned trail judge in providing opportunity to both complainant as well as accused to put forth their case before the trial court. Hence, allegation made by appellant that the learned trial judge has not provided opportunity to put forth case of defense is nullified. Accordingly, this court hold point No.1 in the negative.
9. Point No.2: Complainant alleged in the complaint that on 03.02.2011 accused approached him to pay hand loan of Rs.1,00,000/ to make use of the same for his financial problem, urgent necessities and house hold expenses and agreed to pay Rs.1,00,000/ within short 11 Crl.A.No.712/2015 period. Considering his request and assurance with keeping good faith and believing him paid sum of Rs.1,00,000/ as hand loan to accused on 05.02.2011. Accused had issued post dated cheque on 05.05.2011 bearing No.012843 for Rs.1,00,000/ in favour of complainant drawn on Axis Bank Ltd., New Yelahnaka Town, Bangalore pertaining to his account bearing No.00619271. When he presented cheque for encashment, the said cheque dishonoured and bank authorities issued him endorsement as 'funds insufficient'. Thereafter, he has issued legal notice to accused. He produced cheque marked as Ex.P.1 and identified signature of accused at Ex.P.1(a), legal notice Ex.P.2, postal receipts Ex.P.4, postal acknowledgment Ex.P.5, previous bank endorsement Ex.P.6, complaint marked at Ex.P.7. By doing such complainant discharged liability in proving his case in accordance with presumption of law available to him under the Negotiable Instrument Act. On the other hand accused himself examined as DW1 by taking several defenses and in 12 Crl.A.No.712/2015 his cross-examination he clearly admitted that accused obtained Ex.P.1 cheque at Yelahanka ICICI Bank. Through out the evidence of DW1 he failed to establish that accused in order to cheat him obtained the signature in the cheque, but he admitted signature in Ex.P.1 and denied such other contents of the cheque. Mere suggestion and denial have no probative force in law. But accused/appellant has to prove whatever urged by him in the appeal memo as true by disclosing evidence on record recorded by learned trial judge. Viewing from any angle, there is no crystal clear evidence in the case papers available on record in favour of appellant. Appellant also failed to rebut the presumption available to the complainant to disbelieve case of the complainant. Under these circumstances, there is no valid ground to interfere into the judgment and sentence passed by learned trial judge. Accordingly, this court hold point No.2 in the negative.
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15. POINT No:3 In view of my finding to the point Nos.1 and 2 and for reasons discussed above, I proceed to pass following ORDER The Criminal Appeal filed by the appellant under Sec.374(3) Cr.P.C. is hereby dismissed.
Judgment of conviction and sentence passed by learned XXVIII Addl.CMM, Bengaluru in CC.No:31769/2011 dateds: 15.04.2015 is hereby confirmed.
Send LCR along with the copy of this order forthwith to the trial court.
(Dictated to the Judgment writer on Computer, corrected by me and pronounced by me in the open court on this 27th day of February 2016).
(A.VIJAYAN), LXVI Addl.CC & SJ, Bangalore.