Bangalore District Court
Smt.T.Lalitha W/O Chandrashekar.C vs Smt.Prasanna Kumari W/O Sri.Giridhar on 3 October, 2018
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU
(CCH-61)
:Present:
Sri Vidyadhar Shirahatti, LL.M
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 3rd day of October, 2017
Crl. Appeal. No. 300 / 2016
Appellant :- Smt.T.Lalitha W/o Chandrashekar.C.
Ageda bout 40 years, R/at No.19, 3rd
Cross, Mahatma Gandi Road, (Bridge
Road,) Bhuvaneshwari Nagar,
K.P.Agrahara, Magadi Road, Bengaluru-
560 023
(By Sri.U.Prasanna Kumar, Adv)
Vs.
Respondent:- Smt.Prasanna Kumari W/o Sri.Giridhar,
Aged about 48 years, R/at No.2, 2nd Cross,
left side, Manjunatha Nagar, Bengaluru-
560023.
(By Sri.S.R.Nagaraj, Adv)
JUDGMENT
This appeal is filed u/Sec. 374(3) of Cr.P.C., by the appellant, being aggrieved by the judgment of conviction and sentence passed by in CC No.9945/2014 dt.5.2.2016 for 2 Crl.A.No.300/2016 offence u/s 138 of N.I.Act on the file of XVI ACMM, Bengaluru.
2. The appellant was the accused and respondent herein was the complainant before the trial Court and they are referred to as per the ranks assigned to them before the lower court.
3. The brief facts leading to this appeal can be stated as under:-
The accused and complainant are friends. The accused had borrowed hand loan of Rs.3,50,000/- to fulfill her family necessities, agreeing to repay the same within six months. The accused towards repayment of said loan amount, issued a cheque dt.27.11.2013. When the said cheque was presented for encashment, it was returned with an endorsement as 'Insufficient of fund'. Then the complainant got issued legal notice to the accused and she has not received the legal notice, but she replied to the notice. However, the accused not repaid the cheque amount. 3 Crl.A.No.300/2016
4. Then the complainant presented the complaint under section.200 of Cr.P.C., for offence under Sec.138 of Negotiable Instruments Act. Learned Magistrate took cognizance and registered the case against the accused for offence punishable U/sec. 138 of Negotiable Instruments Act and secured the presence of accused who after appearance, denied to plead guilty. Then the complainant examined herself as PW1 and got marked documents as per Ex.P.1 to Ex.P.11.The counsel for the accused, fully cross examined PW1. After recording of statement of accused under Sec.313 of Cr.P.C., the accused examined herself as DW1 and not produced any document.
5. The learned Magistrate on hearing the arguments on both sides, found the accused guilty and proceeded to convict the accused for offence u/s. 138 of Negotiable Instruments Act and sentenced her to pay a fine of Rs.3,70,000/- and in default of payment of fine amount, the accused shall undergo S.I. for a period of six months. Besides, the trial Court awarded compensation of 4 Crl.A.No.300/2016 Rs.3,60,000/- out of the fine amount to the complainant acting u/s.357 of Cr.P.C., by passing the impugned judgment dt.5.12.2016.
6. It is this judgment of conviction and sentence which is now under challenge by the appellant/accused on the following grounds:-
The impugned judgment of conviction and sentence passed by the trial court is opposed to the settled principles of law, facts and probabilities of the case. The learned Magistrate grossly erred in not properly appreciating the oral and documentary evidence available on record in proper perspective. The learned Magistrate failed to consider the fact that the accused being small employee and she has not having family necessities to borrow the loan from the husband. Further that learned Magistrate failed to appreciate the evidence of DW1 that her husband who is working and he is receiving salary of Rs.25,000/- per month and even though the accused is also getting salary of Rs.10,000/- per month. 5 Crl.A.No.300/2016 The learned Magistrate not looked into the judgment of Hon'ble Apex court regarding the transactions where in the cash transactions are above the Rs.20,000/- to be paid through cheque only. The learned Magistrate not looked in to the judgment of Hon'ble Apex court laid down in Veeraiah Vs.G.K.Madivalar in 2012(1) KCCR 2017. Further that, the lower court has failed to note that the complainant has received Rs.1,50,000/- from her sister and same amount has given to the accused. But the complainant has failed to examine her sister as a witness. Further that, the cheque has given for the security purpose, but the complainant misused the cheque. The learned Magistrate failed to note that, no documents were taken by the complainant in support of alleged lending money to the accused. The learned Magistrate erroneously rejected defense set up by accused, without attaching any importance. Learned Magistrate erroneously relied upon the case of the complainant to hold that the accused guilty. The impugned judgment of conviction is unsustainable and not tenable in the eye of law. Hence, 6 Crl.A.No.300/2016 prayed to set aside the impugned judgment of conviction and to acquit the accused by allowing the appeal.
7. After filing of this appeal, notice duly served on the respondent who made her appearance through a counsel. The trial Court records have been secured.
8. Heard arguments of learned counsel for appellant and learned counsel for respondent.
9. Perused the records.
10. In the light of the contentions taken up in the memorandum of appeal, the points that arise for my determination are as follows;
1) Whether the Court below erred in not properly appreciating the defense set up by the accused in proper perspective?
2) Whether the learned Magistrate
erroneously rejected the contents of
accused?
7 Crl.A.No.300/2016
3) Whether the learned Magistrate erred in convicting the appellant/accused for offence punishable U/sec. 138 of Negotiable Instruments Act?
4) Are there any grounds to interfere with the order of conviction and sentence?
5) What order?
11. My findings on the above points are as follows:
Points No.1 to 4 : In the Negative Point No.5 : As per final Order REASONS
12. Point No.1 to 4:- All these points are taken together for discussion for the sake of convenience and to avoid repetition of facts.
13. I have carefully gone through the contents of appeal memo, trial Court records and the impugned judgment.
14. It is the specific case of the complainant that, the accused and complainant are friends and the accused 8 Crl.A.No.300/2016 borrowed a hand loan of Rs.3,50,000/- from the complainant to fulfill her family necessities and repayment of said hand loan, the accused issued cheque in question i.e. Ex.P.1 dt:27.11.2013. It is further case of the complainant that, since the said cheque which was issued by the accused came to be dishonoured as insufficient funds and the complainant had issued legal notice to the accused and the same had not received by the accused. But the accused had given reply to the legal notice and the accused has not repaid the amount mentioned in the cheque. Hence, complainant filed the case against the accused for the offences punishable u/Sec.138 of N.I.Act.
15. On the other hand, it is defense set up by the accused that the cheque in question was issued in blank as security to the complainant. The complainant was running a chit fund business and accused is the member of the chit fund and regularly paying the Rs.10,000/- chit fund amount to the complainant. The accused had given a cheque to the complainant as a security purpose. Further the accused 9 Crl.A.No.300/2016 stated that, earlier, the accused was borrowed a loan and she had repaid the loan amount and even though, closure of the chit fund business with the complainant, the complainant failed to return the blank signed cheque which was issued as a security. Further the accused states that, complainant misused the said cheque for filing this complaint. It is further defense set up by the accused that, the complainant has no financial capacity to pay that much amount to the accused. It is also defense set up by the accused that, the complainant failed to return the cheque in question which was issued as security, since the cheque in question was misused by the complainant for making wrongful gain, she is not liable to pay the said cheque amount.
16. Keeping in view the rival contentions of both the parties, I have carefully gone through the evidence let in by both the parties to answer the points in controversy.
17. Obviously, the burden is on the complainant to prove that the cheque in question was issued towards 10 Crl.A.No.300/2016 discharge of legally recoverable debt or liability. In this regard, the complainant examined herself as PW1 who in her evidence has reiterated the averments of the complaint and got marked original cheque, memos issued by the bank, copy of legal notice, postal receipt, unserved RPAD cover, reply notice by the accused as per Ex.P.1 to 11.
18. In the cross examination PW1 has deposed that she knows the accused since 3 - 4 years and the husband of the complainant has doing real estate business and his monthly income is about 4 - 5 lakhs and her husband is not income tax assessee. PW1 states that accused approached the complainant on 2.1.2013 and sought hand loan of Rs.3,50,000/- about her financial crises. At the time of giving hand loan, the accused and complainant were present in the house of complainant and even her husband was not present and knowledge about this transactions. However, according to PW1, there was no agreement between the accused and complainant with regard to alleged lending of loan. According to the PW1, as per oral undertaken by the accused to repay 11 Crl.A.No.300/2016 the loan amount before 2013, she lent loan to her. For repayment of said amount, the accused issued a cheque on 26.11.2013 and she further deposes that, she has not lent money to the accused for any interest and that, she has rental income from 7 houses and a shops and she took Rs.1,50,000/- from her sister, who retired from office and that amount she was lent total amount of Rs,3,50,000/- to the accused and PW1 denied about the chit fund business. Further PW1 deposes that, she has not produced any rent receipts to show that, she has rental income of Rs.32,000/- per month and that she has not shown any rental income in the IT returns. Further the defense of the accused that in the cross examination of PW1 the accused has not sought hand loan amount of Rs.1,50,000/- from the PW1 and PW1 has obtained the cheque from her in chit fund business transaction and even though the accused sought for rebut the of the cheque, the complainant replied that, the said cheuqe was misplaced and she would search the same and given to her. But thereafter, the accused had lodged the complaint 12 Crl.A.No.300/2016 against the complainant for misusing of the cheque. At the time of paying the amount, nobody was present when he advanced loan amount to accused in her house.
19. A careful appreciation and evaluation of the evidence of PW1 coupled with contents of Ex.P.1 to Ex.P.11, makes it clear that, the accused and complainant were known to each other very well and several money transactions had taken place amongst them. Herein this case the accused does not dispute her signature found on the cheque in question. But it is her contention that it was issued only as a security towards the chit fund business. But this contention of accused is not substantiated by any material on record. Further that, the version of the accused it reveals that she had paid Rs.10,000/- per month towards chit fund business and there is no need to give cheque as a security purpose, because accused has not borrowed the loan complainant. The main question arises in the mind that, the she paying the money to chit fund business, then why she had issued a cheuqe as a security purposes, if she had 13 Crl.A.No.300/2016 borrowed the amount, then she has to give a cheque for security purpose. Therefore, I am of the opinion that, the contention taken by the accused is not sustainable. Further that accused has taken contention in Ex.P.10 at para 5 clearly states that, "my client does not know to read and write Kannada or English language. My client has practiced her signature. My client instructed me that, you have kept the cheque and documents as a collateral security, which was for the old transactions. The old transactions amount for Rs.3,50,000/-, for which my client clear the debt,............." This version celery shows that, accused and complainant having money transactions amongst them. Further that, the above version clearly states that, the accused borrowed a loan of Rs.3,50,000/- from the complainant and it is very clear that, whereas the accused has admitted the transactions which may be in question.
20. Further that, the accused stated that, she had filed a complaint before the police against the complainant 14 Crl.A.No.300/2016 and she had not produced any documents in respect of alleged lodging of complaint.
21. Further, if really the accused had issued said cheque as security whenever she borrowed loan amount from complainant on different occasions, she would not have kept mum without insisting complainant for returning the cheque soon after repayment of loan amount or closing of chit fund business. The contention of the accused that though she had requested complainant for return of said cheque and it was not returned by the complainant, is not probable and believable one. As such the defense set up by the accused is not proper and believable and natural one.
22. Moreover, when the accused admits her signature found on Ex.P.1 and handing over the same to complainant while borrowing loan amount, the presumption under Sec.139 of Negotiable Instruments Act would arise in favour of the complainant. But the accused has not produced any materials to rebut the said presumption. As such, no 15 Crl.A.No.300/2016 material is produced appreciate the defense set up by accused with regard to the cheque. Therefore, the learned Magistrate has rightly appreciated and evaluated the evidence of PW1 in proper perspective. As such there is no any illegality or error committed by the Court below in appreciating the evidence available on record.
23. On going through the chief examination of DW1 as well as cross examination , it is pertinent to note that, accused had set defense as in one stage she has deposed that, she has issued blank signed cheque to the complainant in November 2012. However, in the chief examination she has taken contrary defense stating that signature in Ex.P.1(a) was not her signature and same has been forged by PW1. In her cross examination she has deposed that, she issued a blank cheque to PW1 with her signature. This itself clearly shows that, accused is inconsistent defense taken. Further that, accused strongly taken defense that, complainant is not having capacity to pay amount of Rs.3,50,000/-. The accused is trying to elicit that complainant is not income tax assessee, 16 Crl.A.No.300/2016 if she is able to pay much amount, she should have income tax assess. This question are not relevant at this juncture.
24. The accused has relied upon the various decisions of Hon'ble Apex court as well as Hon'ble High Court in B.Indramma V/s Sri.Eshwar in ILR 2009 KAR 2331, it is held that, presumption u/Sec. 139 - presumption - transaction between the husband of the complainant and accused
- dispute as to facurm of delivery of the cheque by the accused to the complainant ............"
25. Aforesaid case is not relevant to the case on hand. The present case issuance of cheque is not dispute between the both parities. Therefore, the above judgment is not applicable to the case in hand. Further the accused relied upon the decision of the Hon'ble Apex court in P.Satya Narayana V/s C.H.Jayatheretha and also AIR 2009 SC 1518 in M/s Kumar Exports Vs M/s Sharma Carpets "in a Negotiable instrument Act S.18, S.139 presumption that cheuqe was for discharge of debt/liability rebuttal of - need not be by proof of defense beyond reasonable 17 Crl.A.No.300/2016 doubt. So the above citation are not applicable to the case. In the decisions of the above case ratios are different in present case. The accused had set up her defense that, cheque had issued to the complainant for security purpose in the chit fund business and the accused had paid the chit fund amount of Rs.10,000/- in every month but there is no need to issue cheque as a security in favour of complainant.
26. Further the accused relied upon the decision of Hon'ble High court in Crl.R.P.No.1571/2010, in Veerayya V/s G.K.Madivalar, 2010 SCC online KAR.54: in B.Girish V/s Ramaiah are not applicable to the present case in hand, because the ratio laid down in the above cases are entire different.
27. The learned counsel for accused also relied upon the decision of 2015 AIR SCW 64 in K.Subramani V/s K.Damodara Naidu wherein it is held in para 9 that: on the contrary, the complainant has admitted in his evidence that, in the year 1997 he had obtained a loan of Rs.1,49,205 from 18 Crl.A.No.300/2016 the LIC. It is pertinent to note that, the alleged loan of Rs.14 lakhs is claimed to have been disbursed in the year 1997 to the accused. Further the complainant did not produce bank statement to substantiate his claim. ........"
28. In the above case of the facts are very different in the present case. The complainant had taken loan from one bank minimum paid as hand loan and lent the hand loan to the accused is about 14 lakhs. So therefore, the Hon'ble Apex assumed that, complainant had no capacity to pay huge amount of Rs.14 lakhs and in that case, the accused had taken proper defense. But in the case on hand, the complainant is having capacity to pay the loan amount and accused has not taken proper defense. Further that in ex.P.10 at para 5 the accused clearly admitted that, she had taken loan from the complainant about Rs.3,50,000/- .So the version clearly shows that, the complainant is having capacity to pay Rs.3,50,000/- to the accused. Therefore, the above ratio of the Hon'ble Apex court is not applicable to the case in hand. The remaining judgments which have been relied by 19 Crl.A.No.300/2016 the accused are not applicable to the case in hand. Therefore, the accused has field to rebut the case and also he has not set up proper defense.
29. Further that, though the accused had liberty to examine witness and she had examined herself as DW1 and accused had stated that, she had given police complaint regarding the misuse of the cheque by the complainant. But the accused had not produced FIR copy or any documents relating to her version.
30. Having regard to all these facts and circumstances, I am of the considered view that the learned Magistrate has rightly appreciated the oral and documentary evidence available on record in proper perspective. The learned Magistrate committed no error or illegality in appreciating and evaluating the documents relied upon by both the parties. Herein this case, the accused failed to rebut the presumption available in favour of complainant under 20 Crl.A.No.300/2016 Sec.139 of Negotiable Instruments Act. A bald denial of the case of complainant does not amount to a defense.
31. Furthermore, the accused has replied the legal notice of the complainant. It appears from the records that the accused is having knowledge about the cheque as well as transaction. As per para 5 of the Ex.P.10 clearly speaks that, accused having economic transactions with the complainant.
32. Having regard to the facts and circumstances of the case, I am of the view that the impugned judgment of conviction and sentence passed by the learned Magistrate is in accordance with settled principle of law, facts and probabilities of the case. Absolutely there are no grounds to interfere in the impugned judgment of conviction and sentence passed by the Court below. The impugned passed by the Court below deserves to be confirmed with. Accordingly, I answer point No.1 to 4 in the negatively. 21 Crl.A.No.300/2016
33. Point No.5: In view of my findings on point No.1 to 4, I proceed to pass the following:
ORDER The appeal filed by appellant U/sec.374(3) of Code of Criminal Procedure is hereby dismissed.
The impugned judgment of conviction
passed by XVI ACMM, Bengaluru in CC
No.9945/2014 dt.5/2/2016 for offence u/s 138 of Negotiable Instruments Act is hereby confirmed.
Send a copy of this judgment to the lower Court along with LCR.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then pronounced by me in the open court on this the 3rd day of October, 2018) (Vidyadhar Shirahatti) LX Addl. City Civil & Sessions Judge, Bengaluru 22 Crl.A.No.300/2016