Bangalore District Court
Sri. Hanumanappa vs Sri. Jagadeesh on 10 August, 2021
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Crl.A.No.2232/2019
IN THE COURT OF THE LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU.
Dated this the 10th day of August, 2021
-: P R E S E N T :-
Sri. RAJESHWARA, B.A., L.L.M.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
CRIMINAL APPEAL No.2232/2019
APPELLANT/ : Sri. Hanumanappa
(ACCUSED - IN S/o Late Lakkaiah,
TRIAL COURT) : Aged about 59 years,
Superintendent
Diesel Loco Shelf Fueld Office
Southern Western Railways
K.R. Puram, Bengaluru.
(By Sri. J.V. Srinivasaiah., Advocate)
/Vs/
RESPONDENT/ : Sri. Jagadeesh
S/o M. Ramachandrappa,
(COMPLAINANT Aged about 40 years,
- IN TRIAL R/at No.76, I Cross,
COURT) : Anjaneya Temple Road,
Mallasandra, T. Dasarahalli,
Bengaluru - 560 057.
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Crl.A.No.2232/2019
JUDGMENT
Appellant has filed this appeal U/s.374(3) of Cr.P.C., being aggrieved by the judgment of conviction and order of sentence passed in C.C.No.13701/2018 dated 07.09.2019 on the file of XX Addl.Chief Metropolitan Magistrate, Bengaluru (herein after referred as impugned judgment and order).
2. Parties to this appeal shall be referred to as per their ranking before the trial court for the purpose of convenience and for better appreciation of their contentions.
3. In the memorandum of appeal, appellant has submitted that, trial court has not properly appreciated the evidence available on record. No sufficient opportunity was given to the appellant to establish his defence. No sufficient opportunity was given for cross- 3
Crl.A.No.2232/2019 examination of complainant. Impugned judgment of conviction and order of sentence is perverse. For the aforesaid reasons, appellant has prayed to interfere into the impugned judgment and order and set aside the same.
4. Along with memorandum of appeal, appellant has produced certified copy of impugned judgment of conviction and order of sentence.
5. This appeal is not filed within the time prescribed. Hence, application U/s.5 of Limitation Act is also filed for condonation of delay in preferring this appeal.
6. Respondent appeared through counsel. Heard arguments. T.C.R. were called for reference in this appeal. 4
Crl.A.No.2232/2019
7. Now, following are points that arising for determination:
1. Whether appellant had sufficient cause for not preferring this appeal within the period of limitation?
2. Whether in the light of evidence and material brought before the court, trial court is justified in convicting accused/appellant for the offence punishable U/s.138 of N.I.Act and sentencing accused for the said offence?
3. Whether interference of this court is necessitated?
4. What Order?
8. It is answered for the aforesaid points as under:-
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: In the Negative Point No.4: As per final order below, for the following:-5
Crl.A.No.2232/2019 REASONS
9. POINT NO. 1:- Perused the application filed U/s.5 of Limitation Act, contents of affidavit filed in support of said I.A. In the affidavit, appellant has submitted that, he was suffering from severe heart problem, his son died on 25.12.2018. He was in a mentally disturbed condition. Therefore, he was unable to contact his counsel to instruct him to prefer this appeal. Therefore, there is delay of 17 days in preferring this appeal. Reasons assigned by the appellant is acceptable. This court is of the opinion that to provide an opportunity to prosecute the appeal, I.A. deserves to be allowed. Hence, point No.1 is answered in the affirmative.
10. POINTS NO.2 & 3:- These two points are taken together for common discussion. 6
Crl.A.No.2232/2019
11. Brief facts of the case of the complainant is as under;
The accused is well known to the complainant since several years, In the month of January 2017, accused availed hand loan of Rs.5,00,000/- from the complainant to meet the expenses of the marriage of the relative, domestic purposes and other commitments and agreed to repay the same within one year. Accused has not returned the money as alleged upon. After several demands and requests, towards discharge of his liability, accused issued a cheque bearing No.006507 dated 05.03.2018 for Rs.5,00,000/-, drawn on Central Bank of India, IISC, Bengaluru branch, Bengaluru. Complainant presented the said cheque for encashment through his banker Canara Bank, Bagalgunte branch, Bengaluru on 09.03.2018 and the said cheque returned with an endorsement dated 12.3.2018 as "Funds insufficient", dated 12.03.2018. 7
Crl.A.No.2232/2019 thereafter, complainant got issued legal notice on 24.03.2018 to accused. The legal notice returned on 09.04.2018 with a shara "not claimed". Accused intentionally not maintained sufficient amount in his bank account to honour the cheque issued in favour of the complainant towards discharge of legally enforceable debt. Hence, complainant filed complaint against the accused U/s.200 of Cr.P.C. for the offence punishable U/s.138 of N.I.Act.
12. Perused entire order sheets, complaint filed U/s.200 of Cr.P.C., for the offence punishable U/s.138 of N.I.Act, sworn statement affidavit of the complainant, plea of accusation, examination-in-chief evidence of Pw.1 by way of affidavit, ingredients of documents at Ex.P.1 to Ex.P.6, statement of accused U/s.313 of Cr.P.C., evidence of Dw.1. There is no procedural defect of any nature while 8 Crl.A.No.2232/2019 conducting trial relating to private complaint registered for the offence punishable U/s.138 of N.I.Act.
13. So far as appreciation of evidence is concerned, Pw.1 has reiterated ingredients of his complaint in his examination-in-chief affidavit. Ex.P.1/cheque, Ex.P.2/ Bank endorsement made it clear that, cheque issued by the accused to the complainant came to be dishonoured by the banker of the accused. Ex.P.3/copy of the legal notice, Ex.P.4 and 5/postal receipts made it clear that in compliance with the provisions U/Sec 138 of NI Act, complainant issued notice in writing to the accused demanding amount payable under bounced cheque. Ex.P6/Returned postal cover with endorsement that "Identification Defer" shall be considered as deemed service. With the help of the evidence of Pw.1 and contents of Ex.P.1 to Ex.P.6, complainant successfully discharged initial burden of proof casts U/s.138 of N.I.Act. 9
Crl.A.No.2232/2019 Thereafter, burden shifts on the accused as per presumptions coming into play U/s.118 and 139 of N.I.Act in the form of reverse onus on the accused to rebut presumptions.
14. Accused appeared before the court and enlarged on bail. There is no specific plea of defence filed by the accused. To rebut presumptions, accused cross- examined Pw.1 and accused examined himself as Dw.1.
15. Before considering the point whether accused succeeded to rebut presumptions and to establish his defence to the extent of probabilities, it is just and necessary to accumulate undisputed facts in this case.
16. It is not in dispute that bounced cheque belongs to the bank account of the accused. It is also not in dispute that, signature appearing on the bounced cheque is the signature of the accused. It is also not in 10 Crl.A.No.2232/2019 dispute that, cheque presented by the complainant came to be dishonoured by the banker of the accused for the reason stated in the dishonour memo.
17. Defence of the accused is totally denial case of the complainant. Even though accused examined himself as Dw.1, he was not tendered himself for full cross-examination. Therefore, evidence adduced by Dw.1 was not taken into consideration by the trial court.
18. To assess whether accused succeeded to establish the aforesaid defence to the extent of probabilities, it is just and necessary to accumulate admissions elicited in the cross-examination of Pw.1. No such admission is elicited in the cross-examination of Pw.1 to show that, complainant is not paid any loan to the accused. No such admission is elicited in the cross- examination of Pw.1 to show that, accused did not borrow 11 Crl.A.No.2232/2019 any loan amount from the complainant as alleged in the complaint. No such admission is elicited in the cross- examination of Pw.1 to show hat, complainant filed false complaint against the accused. No such admission is elicited in the cross-examination of Pw.1 to show that, by misusing the cheque issued by the accused to one 'Lingaraju' for security purpose, complainant filed this false complaint.
19. Accused examined himself as Dw.1. In the evidence adduced by the accused as Dw.1, accused reiterated his defence. Accused deposed that he did not borrow any amount from the complainant in the year 2016. His friend Lingaraju was the member in chit for Rs.1,00,000/-(one lakh) with Ravikumar. At the time of taking the chit amount, Ravikumar persuaded him to give cheque to Ravikumar for security purpose. Therefore, Lingaraju issued 4 cheques of the accused to Ravikumar. 12
Crl.A.No.2232/2019 Due to demonetization, chit business of Ravikumar was stopped and he returned all cheques of the members of the chit. 4 cheques issued by the accused was returned by Ravikumar to Lingaraju. But Lingaraju did not return those cheques to the accused. Thereafter Lingaraju handed over one cheque to the complainant to file this complaint. He had no necessity to borrow loan from the complainant. However, in the cross-examination Dw.1 has admitted that address mentioned in the cause title of the complaint is his address. The signature on Ex.P.1/ cheque is his signature. He studied upto PUC. Legal notice sent by the complainant was served to the correct address. As he was not in station, he was not received legal notice. Due to ill-health, he was not attending duty for three months.
19.1) Dw.1 further admitted that Ravikumar introduced through Lingarju. Admissions elicited in the 13 Crl.A.No.2232/2019 cross-examination of Dw.1 made it clear that bounced cheque belongs to bank account of the accused. Signature on the bounced is signature of the accused. Evidence adduced by accused as Dw.1 is not corroborated with any documentary evidence to substantiate the defence set up by the accused to the extent of probabilities.
19.2) In the cases where signature on the bounced cheque is admitted by the accused and after service of legal notice no reply is given, then court shall presume that allegations made in the complaint by the complainant is true.
20. Perused the impugned judgment and order of conviction passed by the trial court. In the trial court judgment, averments made in complaint filed by the complainant, evidence adduced by the complainant as 14 Crl.A.No.2232/2019 Pw.1, evidence adduced by Dw.1, contents of exhibited documents at Ex.P.1 to Ex.P.6 are discussed. Further particulars of admissions elicited in the cross- examination of Pw.1 is also taken into consideration. Relying upon the admissions by the accused with respect to cheque and signature, trial court discussed the defence set up by the accused to assess whether defence set up by the accused is probable. Trail Court has relied upon the law laid down in ILR 2006 KAR 4672 J.Ramaraj v/s Iliyaz Khan that "Mere denial of issuing cheque would not be sufficient as it is time and again noted that once the cheque is issued duly signed by the petitioner, the presumption goes against him as per Sec 139 of the Negotiable Instruments Act."
20.1) Trial Court further relied upon law laid down in 2004 (3) KCCR 1816 L.Mohan v/s Mohan Naidu that "When once the issuance of cheque and the signature on 15 Crl.A.No.2232/2019 its admitted, court has to presume that the cheque has been issued for discharging the debt or liability. The burden of proof shifts on the accused to prove that, there was no liability/debt or that the cheque was issued to a different person."
20.2) Further trial court has relied upon law laid down in 2007 Crl.L.J (NOC) 520 (KER) in a case of Sanjeev P.R. V/s Thriveni Credit Corporation, Thodupuzha & Another it is that "(B). Negotiable Instrument Act (26 of 1881), S.138 Dishonour of cheque conviction-Validity- Signature in cheque is admitted-Notice of demand through duly received and acknowledged, did not evoke any reply...-Concurrent finding that complainant has succeeded in proving all ingredients of the offence punishable under section 138 - Conviction of accused proper."
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Crl.A.No.2232/2019 20.3) In 2006 Crl.L.J 1 in a case of Gorantala Venkateshwara Rao v/s Kolla Veera Raghava Rao and another it is held that "(B) Negotiable Instrument Act (26 of 1881), S.138 -Dishonour of cheque-Legally enforceable debt-Failure of accused in giving reply to legal notice issued by complainant-Is one of the strong circumstances to draw an interference that accused borrowed amount from complainant and cheque was issued towards part payment of legally enforceable debt."
20.4) In 2001 Crl.L.J 4647 in a case of Hiten P. Dalal v/s State of Bratindranath Banerjee it is held that; "(B) Negotiable Instrument Act (26 of 1881), SS.139, 138- Dishonour of cheque-Presumption that cheque was drawn for discharge of liability of drawer-Is presumption of law- Ought to be raised by Court in every case-Rebuttal evidence-Nature-Mere plausible explanation is not sufficient- Proof of explanation is necessary. 17
Crl.A.No.2232/2019 20.5) In 2017(2) A.K.R. 527 Arjun v/s E.Shekar it is held that; "S.138, 139-Presentation of lawful consideration-Rebuttal of -Burden of proving that cheque has not been issued for any debt or liability-is on accused- mere plausible explanation not sufficient to disprove complainant's case."
20.6) In AIR 2018 SUPREME COURT 3601, in a case of T.P. Murugan (Dead) Thr.Lrs. V.s Bojan, it is held that;
"Negotiable Instrument Act (26 of 1881), Ss 118, 138, 139-Dishonour of cheque-Presumption as to enforceable debt-cheques allegedly issued by accused towards repayment of debt-Defense of accused that 10 cheuqes issued towards repayment of loan back in 1995-Behaviour of accused in allegedly issuing 10 blank cheque back in 1995 and never asking their return for 7 years, unnatural-accused admitting his signature on cheques and pronote, presumption under S.139 would operate 18 Crl.A.No.2232/2019 against him-complainant proving existence of legally enforceable debt and issuance of cheques towards discharge of such debt-Conviction, proper".
20.7) In the decision reported in AIR 2018 Supreme Court 3604 in a case of Krishna Rao v/s Shankargouda it is held that; "Negotiable Instrument Act (26 of 1881), Ss 138, 139-Dishonour of cheque-Presumption as to- Acciused issuing cheque of Rs.2 lakhs towards repayment of loan to complainant-Said cheque dishonoured on account of insufficiency funds-complainant proving issuance of cheque having signatures of accused-Accused failing to rebut presumption raised against him and no evidence led by him in his support-Acquittal of accused by High Court in revisional jurisdiction on ground of doubt in mind of court with regard to existence of loan, improper- Accused, liable to be convicted."
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Crl.A.No.2232/2019 20.8) Further in the judgment reported in AIR 2019 Supreme Court 1876 Rohitbhai Jivanlal Patel v/s State of Gujarat and another it is observed in para 12 that; the basic questions to be addressed to are two-fold; as to whether the complainant-respondent No.2 had established the ingredients of Section 118 and 139 of the NI Act, so as to justify drawing of the presumption envisaged therein; and if so, as to whether the acccused- appellant had been able to displace such presumption and to establish a probable defense whereby, the onus would again shift to the complainant?"
20.9) In 2014(K) AKR 98 Sripad v/s Ramdas M Shet, Crl.Apl No.2689/2009 it is held that; "Negotiable Instrument Act (26 of 1881), Ss.138, 139, 118-Dishonour of cheque-Acquitted-Validity-Cheque issued by the repay loan amount to complainant, was dishonoured-Specific defense-However, accused failed to rebut initial 20 Crl.A.No.2232/2019 presumption under sections 118 and 119-Mere distorted version or mere taking up defense by it means that he is not liable to pay any amount-Are not sufficient to put back the burden on to the complainant-Acquittal of accused- Not proper."
20.10) Rangappa V/s Mohan reported in AIR 2010 SC 1898 = 2010 SIR (SCW) 2946, it is held that: "in the light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by section 139 of the Act does inded include the existence of the legally enforceable debt or liability."
20.11) Further Trial Court relied upon direction issued in AIR 2014 SC 2528 (Indian Bank Association v/s Union of India) Crl.Petition No.8943/2010 M/s Mess Transgare Pvt v/s Dr.R.Parvathareddy and in Rajesh 21 Crl.A.No.2232/2019 Agarwals case, it is held that "Accused cannot simply say "I am innocent" or "I pleaded not guilty".
21. In addition to the above, accused had not produced any documents to show that, accused filed any complaint before jurisdictional police against complainant firm for misuse of his cheque. Accused did not produced any document to show that he filed private complaint before the jurisdictional magistrate in this regard. Accused did not produced any document to show that he had given instruction to his banker to 'stop payment' when cheque issued by him is produced for realization.
22. Compared reasons assigned by the trial court in the impugned judgment of conviction as discussed above with the allegations made in the memorandum of appeal. No grounds are made out in the memorandum of 22 Crl.A.No.2232/2019 appeal to interfere into the Impugned judgment of conviction.
23. So far as quantum of punishment is concerned, fine of Rs.6,00,000/- (six lakhs) was imposed for dishonour of cheque for Rs.5,00,000/- (five lakhs). In default of payment of fine, accused shall undergo simple imprisonment five months. Order of sentence is reasonable. There is no merit in the appeal. Order under appeal is sustainable in law. Hence, interference of this court is not necessary. Accordingly, point No.2 is answered in the affirmative and point No.3 in the Negative.
24. POINT NO.4 :- In view of findings on the above points No.1 to 3, this criminal appeal is devoid of merits and same is liable to be dismissed by confirming 23 Crl.A.No.2232/2019 impugned judgment of conviction and order of sentence. Hence, following order is made:
ORDER I.A. filed U/s.5 of Limitation Act is hereby allowed.
Delay in preferring this appeal is hereby condoned.
Invoking provisions under Section 386 of Cr.P.C., this Criminal Appeal filed U/s.374(3) is dismissed.
Consequently, impugned judgment of conviction and order of sentence dated 7.9.2019 passed in C.C.No.13701/2018 on the file of XX- Addl.Chief Metropolitan Magistrate, Bengaluru is hereby confirmed.
Appellant/accused is hereby directed to appear before the Trial Court to deposit the fine amount or to serve the sentence. 24
Crl.A.No.2232/2019 Office is hereby directed to send back T.C.R. along with certified copy of this Judgment to the trial court.
(Dictated to the Judgment Writer, script typed by her and corrected, signed and then pronounced by me in the open court on this the 10th day of August, 2021.) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.25
Crl.A.No.2232/2019 10.8.2021 Judgment pronounced in the open court Vide separate judgment ORDER I.A. filed U/s.5 of Limitation Act is hereby allowed.
Delay in preferring this appeal is hereby condoned.
Invoking provisions under Section 386 of Cr.P.C., this Criminal Appeal filed U/s.374(3) is dismissed.
Consequently, impugned judgment of conviction and order of sentence dated 7.9.2019 passed in C.C.No.13701/2018 on the file of XX- Addl.Chief Metropolitan Magistrate, Bengaluru is hereby confirmed.
Appellant/accused is hereby directed to appear before the Trial Court to deposit the fine amount or to serve the sentence.
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Crl.A.No.2232/2019 Office is hereby directed to send back T.C.R. along with certified copy of this Judgment to the trial court.
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.