Bangalore District Court
Sri.K.Babu vs M/S.Kaveri Grameena Bank on 24 February, 2021
Crl.Appeal No.1495/2019
1
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.K.SUBRAMANYA, B.Com., LL.M.
LXVII ADDL CITY CIVIL & SESSIONS JUDGE ,
BENGALURU.
Dated this the 24 th day of February 2021.
Crl. Appeal No.1495/2019
APPELLANT : Sri.K.Babu,
S/o.Krishnan,
40 years,
R/at.No.34, ORC Road,
Okkada Palyam,
Shanthinagar,
Bengaluru.
(By Sri.G.P.M., Advocate)
.Vs.
RESPONDENT : M/s.Kaveri Grameena Bank,
Having its branch at Bellanduru, Bengaluru.
Represented by its Manager, Sri.V.Gopala Krishna Rao, S/o.Venkatachala Rao.
(By Sri.G.S., Advocate) J UD GM E N T This appeal is preferred by the appellant under Section 374(3) of Cr.P.C., challenging the conviction judgment Crl.Appeal No.1495/2019 2 passed by the learned XXVI Addl. C.M.M., Bengaluru in C.C.No.12512/2018, dated:11.06.2019 as to the alleged offence under Section 138 of N.I.Act.
2. The appellant herein was the accused and respondent herein was the complainant before the trial court. For the sake of convenience, parties would be referred to by the ranks they were assigned before the trial court.
3. Brief facts of the case are as under:
The complainant is a Scheduled Bank. The accused being one of the member of the complainant bank had approached the complainant during May 2013 for financial assistance of Rs.7,50,000/- as APML Loan. After due verification, the complainant bank has sanctioned the loan of Rs.7,50,000/- to the accused on 18.05.2013. The accused had agreed to repay the loan amount in 84 equated monthly instalments of Rs.14,200/- with accrued interest thereon and also has executed the mortgage deed in favour of the complainant bank. After availing the loan, the accused became defaulter in repayment of EMIs as and when when fall due to the complainant. As on 14.02.2018, the accused was due in a sum of Rs.10,22,639/-. On repeated requests made by the complainant, the accused had issued a cheque bearing No.115937, dated:14.02.2018 Crl.Appeal No.1495/2019 3 for Rs.10,22,639/- drawn on Canara Bak, Viveknagar Branch, Bengaluru. When the complainant presented the said cheque for encashment, it came to be returned dishonoured with an endorsement "Funds Insufficient" vide Banker's Memo, dated:16.02.2018. Thereafter, the complainant bank got issued the legal notice, dated:16.03.2018 calling upon the accused to pay the cheque amount. The said legal notice was returned with postal endorsement "No such person". The accused has failed to pay the amount to the complainant. Hence, the complainant has lodged the complaint under Section 200 of Cr.P.C., against the accused for the offence under Section 138 of N.I.Act. The trial court after due process and procedure, has passed the impugned order convicting the accused for the alleged offence.
4. In the grounds, the appellant has contended that the impugned judgment of conviction and sentence passed by the trial court is otherwise opposed to law and probabilities of the case. The impugned order is highly arbitrary in nature and suffers for want of proper and convincing reasoning. The trial court order is very much against to the principles of natural justice and contrary to all probabilities to the case. The complainant has misused the cheque issued by the accused towards security. The trial court would have taken an adverse inference against the Crl.Appeal No.1495/2019 4 complainant, but failed to do so. The complainant has not adduced cogent material evidence to satisfy the court that the alleged cheque issued by the accused is towards discharge of legal debt owed by the accused. The trial court proceeded on the assumptions and presumptions, which cannot be accepted in the eye of law. Hence, sought for setting aside the impugned order by allowing this appeal and to acquit the accused.
5. The respondent has put his appearance through his counsel. The lower court records were secured.
6. After hearing the arguments, the points raised for determination are as under:
1. Whether the appellant has made out grounds to intermeddle with the impugned order ?
2. What Order ?
7. My findings on the above points are as follows.
POINT No.1 - In the Negative, POINT No.2 - As per final order, for the following :
R E A SON S
8. POINT No.1 : The trial court while assigning the reasons acted upon the oral evidence of P.W.1 as well as documents produced and marked in "P" series such as Crl.Appeal No.1495/2019 5 Cheque, Signature of the accused, Bank Endorsement, Copy of Legal Notice, Postal Receipt, Returned RPAD Cover and Account Statement. The above said documents are reliable under Sections 62 to 65 of Indian Evidence Act. There is a presumption under special statute N.I.Act as to the debt or liability, which gives presumption that the cheque was issued in favour of the holder in due course for business and financial transaction and it is for the amount, which is due by the drawer. The presumption drawn under Sections 118 and 139 of N.I.Act is sustainable and maintainable under law under the facts and circumstances of the case. The evidence must be sufficient cogent and correlative with the documents and the transaction in respect of which its authenticity is established. Therefore, the documents relied by the trial court is quite appreciable and reliable in nature.
9. In the dictum reported in ILR 2009 Karnataka 1633 (Kumar Exports .Vs. Sharma Carpets) , Their Lordships in para No.18 of the said Judgment have clearly observed as under :
"Applying the definition of the word "proved" in Section 3 of the Evidence Act to the provisions of Section 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act, a presumption will have to be made that Crl.Appeal No.1495/2019 6 every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument was executed by the accused, the rules of presumption under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumption ends only when the contrary is proved by the accused i.e., the cheque was not issued for consideration and in discharge of any debt or liability".
10. Further, in the decision of the Hon'ble Apex Court in Criminal Appeal No.867/2016 (arising out of SLP (Crl) No.5410/2014) (Sampelly Satyanarayana Rao .Vs. Indian Renewable Energy Development) , wherein Their Lordships have pleased to held as under :
" In Rangappa .Vs. Mohan, this court held that once issuance of a cheque and signature thereon are admitted, presumption of a legally enforceable debt in favour of the holder of the cheque arises, it is for the accused to rebut the said presumption, though accused need not adduce the own evidence and can rely upon the material submitted by the complainant.
However, mere statement of the accused may not be sufficient to rebut the said presumption".
Crl.Appeal No.1495/2019 7 The principles enunciated therein by Their Lordships are observed while coming to the conclusion on the facts of this case.
11. It is the main defense of the accused that the cheque was issued as security for loan, but failed to establish that he has discharged the loan and there is receipts for discharging the loan. The accused has not adduced any defense evidence so as to prove that the claim made under cheque is not proper. In this context, the Hon'ble Apex Court in the dictum reported in 2018(8) SC 165 (Kishan Rao .Vs. Shankargouda) , wherein Their Lordships have clearly observed as under :
"When the accused has not led defense evidence to rebut the presumption under Section 139 of N.I.Act, the case of the accused cannot be believed".
Therefore, the trial court has raised the presumption under Sections 118 and 139 of N.I.Act, which is sustainable and maintainable under law.
12. Even, the learned counsel for the respondent has clearly contended that the accused has obtained the loan of Rs.7,50,000/- and he became chronic defaulter and in discharge of the said loan, he has issued the cheque, which Crl.Appeal No.1495/2019 8 came to be dishonoured for the reason "Funds Insufficient". Therefore, the complainant has satisfied the ingredients of Section 138 of N.I.Act, which attract the offence. The accused has not followed the rules, regulations and ordinances of RBI while issuing the cheque. It is also not stated that the cheque was issued for security to discharge a particular sum amount owe or due by the accused. Therefore, the issuance of cheque without being sufficient amount to discharge the liability, attracts the ingredients of the alleged offence.
13. Even the equity needs that the accused has to issue the cheque as security to the loan, when he had capacity to dishcarge the same, without being capacity to discharge the loan amount, why he has issued the cheque remains unexplained. Therefore, the cheque issued from his account in lieu of the debt or liability is apparent on record and the records placed by the complainant including the cheque and notice are very much reliable under Sections 63 to 65 of Indian Evidence Act.
14. Even the notice issued is deemed to be served under Section 27 of General Clauses Act, as the address to which the notice has been sent is the correct address, which was given by the accused while availing loan. The address given Crl.Appeal No.1495/2019 9 in the cause title is also not disputed. Therefore, Section 27 of General Clauses ct as to presumption of service is complied by the complainant.
15. The authenticity of those documents are not disputed. Therefore, the feeble grounds raised by the accused does not in any way to be considered as rebuttal evidence. The accused has not entered into witness box or produced any cogent document, which is relevant to the loan transaction and as to the loan account maintained in the bank as per Ex.P.6. Hence, the grounds urged by the appellant/accused does not in any way justifiable or reliable so as to intermeddle with the impugned order passed by the trial court. There is no scope for intermeddle with the impugned order without being sufficient material grounds and justifiable reasons. Hence, the appeal is devoid of merit and liable to be dismissed. Accordingly, I answer the Point No.1 in the Negative.
16. POINT No.2 : My finding on this point is as per following :
O R DE R The Crl. Appeal filed by the appellant is hereby dismissed. Consequently, the impugned judgment passed by the learned XXVI Addl. C.M.M., Bengaluru in C.C.No.12512/2018, dated:11.06.2019 stands confirmed.
Crl.Appeal No.1495/2019 10 Send back the records to the trial court along with the copy of this judgment.
(Dictated to the Judgment-writer, transcript thereof is corrected and then pronounced by me in the open court on this the 24th day of February 2021) (K.SUBRAMANYA) LXVII Addl.City Civil and Sessions Judge, BENGALURU.