Bangalore District Court
Mr. Srinivasa Shetty. V vs Proprietor on 1 April, 2019
IN THE COURT OF THE LXXII ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU,
(CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 1st day of April, 2019.
Crl. Appeal. No.25186/2018
Appellant/ Mr. Srinivasa Shetty. V.
Accused:- Proprietor,
Bombay Vada Pav,
11th Main, Opposite Vijaya PU
College,
Next to Burger King,
4th Block, Jayanagar,
Bengaluru-560 011.
[By Sri. M.R.Balakrishna -Advocate]
V/s
Respondent/ Sri. Mohammed Shafi,
Complainant: Aged about 61 years,
S/o Mohammed Haneef,
R/at C/o. Smt. Madhu Prakash,
No.629, 12th Cross,
MC HCE Layout,
ShivaramkarantnagarPost,
Bengaluru-560 077.
(By Sri. C.R.A.B.- Adv.)
2 Crl.Appeal.No.25186/2018
JUDGMENT
This Appeal is preferred by the Appellant U/Sec. 374 (3) of Cr.P.C., being aggrieved by the Judgment and Order passed by the XV Addl. Small CauseS Judge & XXIII ACMM, Member M.A.C.T., Bengaluru, in CC. No.50489 of 2017, dtd.17.09.2018, convicting the Appellant/Accused for the offences punishable U/Sec. 138 of NI Act, thereby sentencing him to undergo simple imprisonment for six months and to pay a fine of Rs.5,000/-, in default to pay the fine amount, he shall further undergo Simple Imprisonment for a period of 30-days. Further directed to pay compensation of Rs.7,00,000/- to the Respondent/ Complainant within two months from the date of the said order.
2. The Brief facts leading to filing of the present appeal are:
The present Respondent filed a Complaint U/Sec. 200 of Cr.P.C. against the present Appellant, alleging that, the Appellant approached and requested 3 Crl.Appeal.No.25186/2018 him for hand loan of Rs.10,00,000/-, in the month of Nov. 2013. Heeding to the request of the Appellant, he paid an amount of Rs.5,00,000/- each on 18.11.2013 and 19.11.2013. The Appellant has executed a loan agreement dtd.27.07.2013 and has agreed to pay the interest. The Accused has issued post-dated Cheques bearing Nos.014843 and 014844 both drawn on IDBI Bank, Jayanagara Branch, Bengaluru requesting him to present the same on its due date. As per the request of the Appellant, he presented the said Cheques for their encashment, which were dishonored. On insisting the Appellant, to discharge his liability, he has issued a Cheque bearing No.003049 dated.30.04.2016 for a sum of Rs.5,00,000/- drawn on the Allahabad Bank, Jayanagara Branch, Diagonal Road, Bengaluru. For remaining balance of Rs.5,00,000/- the Appellant has also issued another Cheque in his favour. The Respondent presented the cheque bearing No.003049 dtd.30.04.2016 for its encashment through his Banker ICICI Bank Ltd., 4 Crl.Appeal.No.25186/2018 Bengaluru, again the said Cheque was dishonored with an endorsement "Payments stopped by Drawer". The same was intimated to the Appellant, since he did not respond to the said intimation, legal notice dtd.28.06.2016 was got issued, calling upon the Appellant to pay the amount under the said Cheque. The Appellant neither paid the amount nor has given any reply to the said notice. Hence, the Respondent was constrained to file the complaint U/Sec.200 of Cr.P.C. alleging that the Appellant has committed the offence punishable U/Sec. 138 of N.I.Act.
3. On being satisfied, the Trial Court has issued summons U/Sec.204 of Cr.P.C. to the Accused on 24.07.2017. The Accused appeared before the Trial Court on 03.11.2017 and he was enlarged on bail. Plea was recorded by the Trial Court on 17.01.2018, wherein the Accused claimed to be tried.
4. The Complainant inorder to prove his case got examined himself as PW.1 and got marked six documents as Ex.P.1 to Ex.P.6. P.W.1 was cross- 5 Crl.Appeal.No.25186/2018 examined on behalf of the Accused on 24.07.2018 and 06.08.2018.
5. On closure of Complainant evidence, on the basis of incriminating substance, the Trial Court has recorded statement of the Accused U/Sec.313 Cr.P.C., on 24.07.2018. The Accused got himself examined as DW.1. He was cross examined on behalf of the Accused on 03.09.2018 and 04.09.2018.
6. On hearing the Complainant and the Accused the Trial Court recorded the Order of conviction, against the Accused. Hence, the Accused is before this Court, being aggrieved by the said Judgment of conviction.
7. On filing the appeal, this Court has suspended the sentence under appeal for a period three months initially on 12.10.2018. Notice of the Appeal and I.A.No.1 was issued to the Respondent and LCR were called for. Respondent set-in his appearance on 19.11.2018. LCR were received on 19.11.2018. Heard 6 Crl.Appeal.No.25186/2018 the Learned Counsels for the Appellant and the Respondent respectively, on the appeal.
8. The Appellant has preferred this appeal on the following grounds:
Grounds of Appeal:
a) The Trial Court has miserably failed to appreciate the oral and documentary evidence on record in a proper and perspective manner;
b) The Trial Court has failed to consider that Cheque in question was not issued for legally recoverable debt, as alleged by the Complainant;
c) The Trial Court has failed to observe that the Complainant has not discharged his initial burden to avail the benefit of presumption;
d) The Trial Court has not given sufficient opportunity to the Accused/Appellant to lead his evidence. Thus approach of the Trial Court is against the sound principles of Criminal Jurisprudence, which will lead to disturbing the fair trial of the case. 7 Crl.Appeal.No.25186/2018
e) The Trial Court has failed to consider that the Cheque in question has been issued infavour of Rajiv Guptha in the month of Nov. 2013 in connection with some transaction with him and the Respondent in collusion with him, by misusing the said Cheque the Complainant has filed the present Complainant, which was brought to the notice of the Jayanagara Police Station by the Appellant by filing the complaint before it.
f) The Trial Court has failed to take note-off the difference of hand writing as well as the ink, used in writing the Cheque-Ex.P.1.
g) The Trial Court ought to have appreciated that the Appellant has successfully rebutted the presumption envisaged U/Sec. 139 of N.I. Act. Hence, prayed to allow the said application.
9. Following points arise for my consideration;
1. Point No.1: Whether the Appellant/Accused shows that the Order of Conviction and Sentence recorded by the Trial Court in 8 Crl.Appeal.No.25186/2018 C.C.No.50489/2017, deserves to be setaside, and thereby call for the interference of this Court?
2. What Order?
10. My finding on the above points are as under:
Point No.1 : In the Negative;
Point No 2 : As per final order for the following :
REASONS
11. Point No.1:- The rank of parties will be referred as they were before the Trial Court.
The Complainant has filed a complaint U/Sec. 200 of Cr.P.C. alleging that the Accused has committed an offence punishable U/Sec. 138 of N.I.Act. He has produced six documents viz., Ex.P.1-Cheque bearing No.003049 dtd.30.04.2016 said to have been issued by the Accused, Ex.P.2-endorsement issued by the ICICI Bank Limited, Bengaluru, dtd.15.06.2016, Ex.P.3- endorsement issued by the ICICI Bank, dtd.15.06.2016, Ex.P4. legal notice dtd.28.06.2016, Ex.P5-Postal acknowledgement and Ex.P6-reply notice 9 Crl.Appeal.No.25186/2018 issued by Sri. Balakrishna & Associates Advocate, on behalf of the Accused. On the basis of the said documents and the preliminary evidence led by the Complainant through his PA.Holder Smt. Madhu Prakash W/o Prakash Patil, the Trial Court has issued summons to the Accused U/Sec.204 of Cr.P.C., I do not find any error in the said order of the Trial Court.
12. On appearance of the Accused, plea was recorded on 17.01.2018. I have gone through the contents of the plea recorded by the Trial Court. I do not find any fault in the plea recorded by the Trial Court.
13. On careful perusal of the evidence led by the Complainant as well as the Accused, it is the case of the Complainant that on the request of the Accused he has given hand loan of Rs.10,00,000/- to him. Inorder to repay the said hand loan the Accused has issued two Cheques of Rs.5,00,000/-each. On presentation of both the Cheques, they were dishonored for want of 10 Crl.Appeal.No.25186/2018 "Sufficient Funds". Subsequently, the Accused issued two Cheques of Rs.5,00,000/-each for the repayment of the said Rs.10,00,000/-. At the request of the Accused, the Complainant has presented one Cheque- Ex.P.1, for its encashment, the same has returned un- encashed with an endorsement "Payments stopped by the Drawer", as per Ex.P2 and Ex.P3. The Complainant issued a Legal Notice dtd.28.06.2016 as per Ex.P.4, to the Accused through his Counsel. The same was served by Post as per Ex.P5-Postal Acknowledgment. For which the Accused has replied the same through his Counsel as per Ex.P.6.
14. On close perusal of Ex.P6, the Accused has denied issuance of the Cheque-Ex.P1 to the Complainant and specifically contended that, Ex.P1- Cheque bearing No.003049 along with two other Cheques with signed blank Stamp Paper of Rs.500/- Denomination were given to one Rajiv Gupta of Wilson Garden, on his assurance of investing Rs.10,00,000/-, with the Accused. The Complainant and the said Rajiv 11 Crl.Appeal.No.25186/2018 Gupta have colluded and the Cheque in question is misused by the Complainant. Further it is specifically denied that at no point of time, the Accused has borrowed an amount from the Complainant.
15. The Learned Counsel for the Appellant would fairly submit that, Rs.10,00,000/- is received by the Accused on 18.11.2013 and 19.11.2013 from the Complainant, further he has pointed out the entries in the Bank Statement, which is at page No.138 of the Lower Court record and further contended that Rs.9,00,000/- is again got reverted back to the account of one Minor Poorva Gupta, which is also pointed out by him, the entries in the Bank Statement, which is at page No.138 of the Lower Court record.
16. Considering the inconsistent contentions raised by the Accused in the reply notice-Ex.P6 as well as before the Trial Court in the evidence and at the time of arguments, cumulatively it can be said that, the stand taken up by the Accused that he has not issued 12 Crl.Appeal.No.25186/2018 the Cheque-Ex.P1 to the Complainant and that the Cheque-Ex.P1 was given to one Rajiv Gupta, is to be proved by the Accused, on the basis of preponderance of probabilities. Further the Learned Counsel for Appellant would contend that, the Accused has lodged a complaint against the said Rajiv Gupta, with the Jayanagara P.S. and with the Commissioner of Police, Bengaluru. He further pointed out the acknowledgement, which is available at page No.128 of Lower Court record and the copy of the complaint/petition made to the Commissioner of Police, which is made available at page No.130 of the Lower Court record. On close scrutiny of the said documents, nowhere, there is mention about giving the Cheque-Ex.P1 to Rajiv Gupta. Further the said fact is not contended by the Accused in his reply notice- Ex.P6. So, in the absence of material evidence, the stand taken up by the Accused cannot be accepted at all.
13 Crl.Appeal.No.25186/2018
17. So also in the cross-examination of PW.1 at page No.7, Line Nos.3 to 5, PW.1 has denied the suggestion made on behalf of the Accused, that Rajiv Gupta is his (Complainant-PW.1) friend and through him Accused has given the said amount. This shows that Accused has received the amount from the Complainant. So the stand taken up by the Accused that Complainant has not given any amount to him holds no water.
18. On viewing the amount of oral evidence with Ex.P.1 to P.6, which will suffice the Complainant to have benefit of presumption available U/Sec.138, 139 of N.I.Act. As per the trite principle of law dealing with the presumption U/Sec.138 & 139 of N.I.Act and as per the dictum laid down by the Hon'ble Apex Court in the case of K. Subramani V/s K. Damodara Naidu, reported in 2014 (12) SCALE 677, as well as in the case reported in (2010) 11 SCC 441, wherein it is held that, "presumption U/Sec.139 of N.I.Act accrues to the benefit of the Complainant unless the Accused 14 Crl.Appeal.No.25186/2018 rebut that presumption". Now it is for the Accused to rebut the said presumption available to the Complainant U/Sec.139 of N.I.Act. On coming to the oral evidence on record, wherein it can be seen that, the learned counsel representing the Accused suggested the Complainant-P.W.1 at page No.7, Line Nos.3 to 5 that the Complainant has paid an amount to the Accused and Accused has refunded the said amount to the Complainant, which is denied by the Complainant. Further, in Ex.P6-reply notice, it is contended by the Accused that he has given Cheque- Ex.P1 to one Rajiv Gupta, but no any evidence is forth coming from the side of the Accused, to that effect. Hence, presumption available to the Complainant U/Sec.139 of N.I.Act stands unrebutted. I have gone through the Judgment of the Trial Court, rightly the Trial Court has concluded that the Accused has failed to rebut the presumption available to the Complainant U/Sec.139 of N.I.Act.
15 Crl.Appeal.No.25186/2018
19. As per the decision of the Hon'ble Apex Court relied by the Accused himself delivered in the case of K. Subramani V/s K. Damodara Naidu, reported in 2014 (12) SCALE 677, wherein it is held that, "presumption U/Sec.139 of N.I.Act accrues to the benefit of the Complainant unless the Accused rebut that presumption".
20. In the present case, the Accused has neither made out his case that he has given the Cheque Ex.P.1 in question to one Rajiv Gupta and the said Rajiv Gupta in collusion with the Complainant has filed the present complaint by misusing the said Cheque. Hence, the presumption U/Sec. 118 and 139 of N.I. Act, held unrebutted.
21. On close scrutiny of the cross-examination done on behalf of the Accused to P.W.1, except mere denial there is no any specific denial from the side of the Accused as to the income of the Complainant or the accountability of the Complainant. Section 118 of 16 Crl.Appeal.No.25186/2018 N.I.Act lays down a presumption that, every Negotiable Instrument made or drawn is made or drawn for consideration, unless contrary is proved. Sec. 139 of N.I.Act lays down a presumption that, the holder of a cheque has received a cheque for the discharge of a debt or liability, legally recoverable, unless contrary is proved. Under such circumstances, there is no any hurdle to derive the presumption available to the holder of the cheque U/Sec.118 as well as 139 of N.I.Act. I find force to my above opinion as per the decision of Hon'ble Apex Court in the case of Hiten Pidalal V.s Bratindranath Banergi reported in 2001 Crl.L.J. 4647 (Supreme Court) as well as in the case of M.S.Narayan Menon @ Mani V/s State of Kerala and Another reported in 2006 SAR.Crl.616 and in the case of Krishna Janardhan Bhat V/s Dattatreya G. Hegde reported in (2008)2 SCC Crl. 166. Rightly, the Trial Court has considered all these aspect and there is no any fault on the part of the Trial Court. I do 17 Crl.Appeal.No.25186/2018 not find any force in the submission of the learned counsel for the Appellant.
22. Though, 313 Statement is recorded by the Trial Court on 24.07.2018, it covers the entire incriminating substance, brought on record by way of evidence, against the Accused. The Trial Court has examined the Accused U/Sec. 313 of Cr.P.C. I have gone through the statement formed by the Trial Court and reply given by the Accused, to the said questions, in the statement. I do not find any fault in the statement of the Accused, recorded by Trial Court U/Sec 313 of Cr.P.C.
23. I have carefully gone through the reasoning given by the Trial Court, while awarding compensation to the Complainant U/Sec.357 of Cr.P.C. The Trial Court has rightly consider the guiding principles led down by the Hon'ble Apex Court, in the case of Harisingh V/s Sukhbir Singh reported in (1988) 4 SCC 551, and in the case of Suginthi Suresh Kumar V/s Jagadishan reported in 2002 Crl.L.J. 1003 18 Crl.Appeal.No.25186/2018 (Supreme Court). Even I do not find any fault with the Order of the Trial Court in awarding compensation to the Complainant. When no fault is committed by the Trial Court, interference by this Court does not arise at all.
24. The Court below has considered all the aspects, the grounds taken up by the Accused as defence. I am inclined to interfere with the findings recorded by the Trial Court.
Hence, for the above reasons I answer point No.1 in the Negative.
25. Point No.2: For the aforesaid reasons, I proceed to pass the following:
ORDER Acting U/Sec.386 of Cr.P.C., the Appeal preferred by the Appellant/Accused is hereby Dismissed.
In the consequences, the order passed by the Learned XXIII Addl. CMM, Bengaluru in CC No.50489 of 2017, 19 Crl.Appeal.No.25186/2018 dated 17.09.2018, recording conviction of the Accused, is hereby confirmed.
The order of suspension passed by this Court U/Sec.389 of Cr.P.C. stands revoked.
No order as to costs.
Remit the LCR to the Court below,
on obtaining necessary
acknowledgement.
--
(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me, in the open court on this the 1st day of April, 2019) [Abdul-Rahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)