Bangalore District Court
Sri. Lathesha. G.P vs S/O Late Puttarangaiah on 30 August, 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 30th day of August, 2019.
Crl. Appeal. No. 25080/2019
Appellant/ Sri. Lathesha. G.P
Accused:- S/o Late Puttarangaiah,
Aged about 37 years,
R/at Gowdana Katte,
Mathi Halli Post, Tiptur (TQ),
Tumkur District.
And also at
Sri. Lathesh G.P
Employee No.2297,
T.E Connectiuvity India Pvt. Ltd.,
T.E. Park, No.22,
Doddanekkundi, 2nd Phase,
Indusrial Area, Near Hoody,
White Field Road,
Bengaluru-560048.
[By Sri. Prasanna -Advocate]
V/s
Respondent/ Sri. Chandra Shekar K.N.
Complainant: S/o Nagaraju K.B,
Aged about 37 years,
2
Crl.Appeal.No.25080/2019
R/at No.17, 4th Main,
1st Cross, S.P. Naidu Layout,
Vijinapura Road,
Ramamurthy Nagar,
Near Ashreya School,
Bengalore-560017.
[By Sri. ARK Law Associates-Adv]
JUDGMENT
This Appeal is preferred by the Appellant U/Sec. 374(3) of Cr.P.C, being aggrieved by the Judgment and sentence passed by the LVIIth Addl. CMM, Bangalore in CC. No.53851 of 2018, dtd.02.11.2018, convicting the appellant for the offence punishable U/Sec. 138 of NI Act, sentencing him to pay fine of Rs.1,000/-. Indefault to undergo Simple Imprisonment for three months. Further directed to pay an amount of Rs.5,83,000/- to the Complainant, as compensation U/Sec.357 of Cr.P.C. In default to pay the compensation amount, he shall under go Simple Imprisonment for a period of one year.
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 is well-known to him from 3 Crl.Appeal.No.25080/2019 past five years. Since the Appellant requested the Respondent to advance an amount of Rs. 5,00,000/- in the month of Dec.2014, assuring to repay the same, the Respondent paid an amount of Rs.5,00,000/- to the Appellant in Dec. 2014, by way of cheque. At the time of receiving the said amount, the Appellant promised to repay the said amount, within three years. On completion of three years, the Respondent, repeatedly demanded the Appellant to repay the said amount. In response to it, the Appellant has issued post-dated cheque bearing No.408036, dtd.08.12.2017 for the sum of Rs.5,00,000/- drawn on the State Bank of Mysore, Hoody Branch, Bengaluru, infavour of the Respondent. On presentation of the said cheque for its encashment, by the Respondent through his banker HDFC Bank Ltd., Richmond Road, Bengaluru, received a memo intimating the dishonour of the cheque for "Insufficiency of Funds" on 28.12.2017. Thereafter, the Respondent has issued a legal notice to the Appellant through his counsel, by RPAD on 12.01.2018. The Appellant has neither replied nor paid the amount under the said cheque. After completion of the stipulated period, since the Appellant did not pay the amount covered under the said cheque, the Respondent was constrained to file the present Complaint.4
Crl.Appeal.No.25080/2019
3. On being satisfied, the Trial Court has issued summons U/Sec.204 of Cr.P.C. to the Appellant on 25.04.2018. The Appellant appeared before the Trial Court on 15.06.2018 and he was enlarged on bail. Accusation of Plea of the Appellant was recorded by the Trial Court on 15.06.2018, wherein the Appellant did not plead guilty and claimed to be tried.
4. On 15.06.2018, since the Appellant has not filed an application U/Sec. 145(2) of N.I. Act, the matter came to be posted for defence evidence. Thereafter, on 10.09.2018 again the matter came to be posted for defence evidence. On 11.10.2018, since the Appellant has not led his evidence in defence, defence evidence was taken as 'Nil' and matter came to be posted for Judgment. Thereafter on 02.11.2018 the Trial Court has recorded the Order of Conviction against the Appellant. Being aggrieved with the same, the Appellant is before this Court in Appeal.
5. On filing of this present Appeal, notice of Appeal memo and I.A.No.1/19 was issued to the Respondent and the same was served on him. Respondent set in his appearance on 22.06.2019. LCR were secured on 22.06.2019. Heard the learned 5 Crl.Appeal.No.25080/2019 counsels for the Appellant and the Respondent, respectively, on the Appeal.
6. The Appellant has preferred this Appeal on the following grounds:
Grounds of Appeal:
a) The Trial Court has failed to appreciate the facts and circumstances of the case in a perspective manner;
b) The Trial Court has grossly erred in holding a trial, quite in contrary to the guiding principles of Law. The Trial Court has not recorded the evidence of the Complainant, has not got marked single document on behalf of the Complainant and has not given proper opportunity to the Appellant to cross examine the Complainant, did not record 313 Statement of the Appellant and has failed to afford proper opportunity to the Appellant to lead defence evidence and also has not given even a single opportunity to the Appellant to advance his arguments;
c) Further the Trial Court was pleased to believe the version of the Complainant, though the Complainant was not testified by way of cross-examination, thus the Judgment rendered by the Trial Court, suffers Natural Justice;6
Crl.Appeal.No.25080/2019 Thus, the Trial Court has erred in recording the Order of conviction, against the Appellant, which is required to be setaside by reversing it.
7. Following points arise for my consideration;
1. Whether the Appellant/ Accused show that the Order of Conviction and Sentence recorded by the Trial Court in C.C.No.53851/2018, dtd.02.11.2018 deserves to be setaside, and thereby call for the interference of this Court?
2. What Order?
8. My finding on the above points are as under:
Point No.1 : Partly in the Affirmative; Point No.2 : As per final order for the following :
REASONS
9. Point No.1: The rank of parties will be referred, as they were before the Trial Court.
As per the averments of the Complainant in the complaint, wherein it is contended that, the Accused approached the Complainant requesting him to pay an 7 Crl.Appeal.No.25080/2019 amount of Rs.5,00,000/-. On the said request, the Complainant paid an amount of Rs.5,00,000/- to the Accused, on receipt of the same, the Accused assured the Complainant to repay the same within three years. On completion of the said three years, the Complainant requested the Accused to repay the said amount. Corresponding to the said request, the Accused issued a cheque bearing No.408036, dtd.08.12.2017 for an amount of Rs.5,00,000/- drawn on the State Bank of Mysore, Hoody Branch, Bengaluru, infavour of the Complainant. ON receipt of the said cheque, the Complainant presented it, for its encashment through its banker HDFC Bank Ltd., Richmond Road, Bengaluru. The said cheque has returned unencashed with an endorsement "Funds Insufficient". Thereafter, the Complainant issued a legal notice dtd.12.01.2018 calling upon the Accused to repay the amount under the said cheque, by RPAD. On receipt of the same, the Accused has failed to repay the amount covered under the said cheque.
10. In this case, the Complainant has produced cheque bearing No.408036, dtd.08.12.2017, for an amount of Rs.5,00,000/-; memo issued by the ICICI Bank; memo issued by the HDFC Bank; legal notice dtd.12.01.2018 with postal receipts and postal acknowledgements.
8Crl.Appeal.No.25080/2019
11. On the basis of these documents, the Trial Court has issued summons to the Accused U/Sec. 204 of Cr.P.C. on 25.04.2018. On relying the principles laid down by the Hon'ble Apex Court in the case of Indian Bank Association V/s Union of India, reported in 2014 AIR SCW 3462; holding that there is no necessity for marking the documents, at the time of sworn statement and the documents can be marked, if it is disputed by the Accused during the trial. On this premises, documents produced by the Complainant were not marked at this juncture. I have perused the said Orders; I do not find any illegality, in it.
12. The Accused has appeared before the Trial Court on 15.06.2018. The Trial Court has recorded the plea of accusation of the Accused on 15.06.2018. I have perused the contents of the plea of accusation recorded by the Trial Court. I do not find any illegality, in it.
13. After recording the plea of the Accused, the matter came to be posted for defence evidence, since the Learned Counsel appearing for the Accused did not filed an application U/Sec. 145(2) of N.I. Act. Thereafter matter was posted for defence evidence. On 9 Crl.Appeal.No.25080/2019 11.10.2018, since the Accused failed to lead his defence evidence, matter came to be posted for Judgment.
14. On careful perusal of the proceedings of the Trial Court, it can be seen that, when the Trial Court was of the opinion that marking of the documents produced by the Complainant at the time of his sworn statement i.e., prior to issuance of summons U/Sec. 204 of Cr.P.C. is not required, then the Court below ought to have got marked the said documents produced by the Complainant, after appearance of the Accused i.e., post issuance of summons U/Sec. 204 of Cr.P.C. But that is not done by the Trial Court.
15. On perusal of the Ordersheet dtd.15.06.2018, on recording the plea of the Accused, the Trial Court has posted the matter for defence evidence, as no any application is filed on behalf of the Accused U/Sec. 145(2) of N.I.Act. As per the guiding principles laid down by the Hon'ble Apex Court in the case of Indian Bank Association V/s Union of India, reported in 2014 AIR SCW 3462, it does not suggest the procedure as followed by the Trial Court, in this present case. First of all, the Trial Court ought to have considered the sworn statement of the Complainant recorded pre-issuance of summons as evidence of the 10 Crl.Appeal.No.25080/2019 Complainant and ought to have got marked the documents produced by the Complainant, in the post issuance of summons stage. Thereafter, the Trial Court ought to have afforded an opportunity to the Accused to cross-examine the Complainant, after cross- examination of the Complainant, to have further evidence of the Complainant, if any. On completion of Complainant evidence, on the basis of incriminating substance appearing against the Accused, if any, in the evidence of the Complainant, the Trial Court, ought to have recorded the statement of Accused U/Sec. 313 of Cr.P.C. In the said statement, if the Accused intends to lead his defence evidence, then he ought to have been afforded with such opportunity. After affording such opportunity to the Accused, the Trial Court ought to have heard the Complainant and the Accused and ought to have passed the Judgment. The said procedure is not followed by the Trial Court.
16. Statement of Accused U/Sec.313 is to be recorded after leading of the evidence within the meaning of Sec.137 of Indian Evidence Act, by the prosecution i.e., by the Complainant. As the object of having the statement of the Accused U/Sec. 313, is to make aware the Accused about the incriminating substance against him, which has come on record by way of evidence. This aspect is missing in the 11 Crl.Appeal.No.25080/2019 proceedings. Recording of statement of the Accused U/Sec.313 of Cr.P.C., is not an empty formality, but it is a right of the Accused and it is one of the pillars of Criminal Jurisprudence to have fair trial of the case, which is not observed properly, in this case.
17. The Learned Counsel for the Appellant would contend that if, the provisions of Sec.313 of Cr.P.C., were followed in its true spirit, the Accused would have led his defence, since the procedure, as required by law is not followed, it has caused great prejudice to the Accused, wherein the Accused has lost his, right to get himself defended, properly.
18. Learned Counsel for the Appellant would contend that the Appellant has denied the capacity of the Complainant to give Rs.5,00,000/- to the Accused. Under such circumstances, the Learned Counsel for the Appellant would contend that, it is for the Respondent/Complainant to prove his capacity. As per the decision of the Hon'ble Apex Court, in the case of Basalingappa V/s Mudibasappa (Crl.Appeal.No.636/2019), arising out of SLP(Crl) 8641 of 2018, date of decision 09.04.2019; wherein it is held that;
12Crl.Appeal.No.25080/2019 "when a probable defence is raised by the Accused challenging the financial capacity of the Complainant, it is for the Complainant to prove it, as the Court cannot insist on a person (Accused) to lead negative evidence."
Further the Hon'ble Apex Court has summarized the Principles enumerated for the sake of Sec 118(a) and 139 of N.I. Act, in paragraph No.23, as under:
"23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarize the principles enumerated by this Court in following manner:-
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the Accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the Accused to rely on evidence led by him or Accused can also rely on the materials submitted by the Complainant in order to raise a probable defence.13
Crl.Appeal.No.25080/2019 Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is no necessary for the Accused to come in the witness box in support of his defence, Sec 139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the Accused to come in the witness box to support his defence."
19. Further the Learned Counsel for the Appellant would contend that, the Trial Court has not at all taken into consideration all these aspects dealing with basic requirement of Sec.138 of N.I. Act, initial burden to be proved by the Complainant and thereafter the Accused is required to rebut the presumption available to the Complainant U/Sec.139 of N.I. Act, by affording an opportunity to the Accused, which has not been accorded.
20. Looking to the object of Sec. 313 of Cr.P.C., which states that statement of the Accused is to be recorded inorder to give him an opportunity to explain any circumstances appearing in the evidence against him. Thus, the said statement is required to be 14 Crl.Appeal.No.25080/2019 recorded after completion of the prosecution evidence, which is not done, in this particular case.
21. Considering the dictum laid down by the Hon'ble Apex Court, in the case of Basalingappa V/s Mudibasappa (referred to above) as well as in the case of Rohit Bhai Jeevanlal Patel V/s State of Gujarath & Another (referred to above). Of-course, the Appellant Court is certainly entitle to examine the evidence on record, provided that the Accused has brought the relevant material to rebut the presumption and to show that preponderance of probabilities are in favour of his defence, which in this case the Accused has not been given an opportunity, to bring the same, on record.
22. It is also settled law that the parties to the complaint have a right to be fairly, adequately represented in a criminal trial. Even an Accused has a right to meet the case of the prosecution. It is also the duty of the Court to ensure that the principles of Natural Justice are not violated and the Complainant or the Accused, as the case may be, is to be afforded with a reasonable opportunity to get represented their respective cases. Fair trial is the main object of the Criminal Procedure and it is the duty of the Court to 15 Crl.Appeal.No.25080/2019 ensure that, such fairness is not hampered with or threatened in any manner. Keeping this object at the background, in the present set of facts, the Trial Court has failed to mark the documents produced by the Complainant, to examine the Accused under Section 313 of Cr.P.C., after recording of complete evidence of the prosecution and has failed to afford proper opportunity to have his defence evidence, as per Law.
23. Thus the approach of the Trial Court in the present set of facts is totally incorrect and is in seer violation of the Principles of Natural Justice.
24. Further on careful perusal of the Ordersheet, it is seen that neither the Court below has dispense with the recording of 313 statement of the Accused. The purpose of empowering the Court to examine the accused U/Sec 313 of Cr.P.C. is to meet the requirement of the principle of natural justice audi alteram partem (that no one should be condemned unheard). This means that the accused may be asked to furnish some explanation, as regards the incriminating circumstances associated against him and the Court must take note of such explanation. The scope of Sec 313 of CrPC is wide and is not a mere formality. The object of recording the statement of the accused U/Sec 313 of CrPC, is to put all incriminating 16 Crl.Appeal.No.25080/2019 evidence to the accused, so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. The same is observed by the Hon'ble Apex Court in the case of Sanatan Naskar & Anr V/s State of West Bengal reported in AIR 2010 SC 3507.
25. Non examining the Accused U/Sec 313 of CrPC, is a threat to the dispensation of justice, under the Criminal Procedure. It is a material irregularity.
26. The matter is liable to be sent back, for its re-trail, by the Court below, with a direction to afford fullest opportunity to both the parties and to proceed in the matter, as per the dictum of the law, laid down by Hon'ble Apex Court in the case of Basalingappa V/s MUnibasappa as well Rohit Bhai Jeevanlal V.s State of Gujarath & Another (referred above).
27. The Trial Court has committed an error in dealing the matter, the findings and sentence of the Trial Court, culminated in recording the sentence of conviction against the Accused, deserves to be set aside. Hence, the same is set aside and the same is 17 Crl.Appeal.No.25080/2019 remanded for fresh trial, by giving opportunity to both the parties, as required by law.
For the above reasons, I am constrained to interfere with the Judgment passed by the Trial Court.
Thus, for the above said reasons, I answer point No 1 Partly in the AFFIRMATIVE.
28. Point No 2: For the aforesaid reasons, I proceed to pass the following;
ORDER:
Appeal preferred by the Appellant U/Sec 374 of CrPC., is hereby Partly ALLOWED.
In the consequences, the order of conviction recorded by the LVIIth ACMM, Bengaluru, in C.C.No.53851/2018 dtd.02.11.2018, is hereby Set-aside.
Further without touching the merits of the case, the matter is remanded back to the Trial Court to retry the Accused, with a direction to readmit the criminal case, under its original number in the Register of Criminal Cases and proceed to determine the case, in accordance with law, without getting influenced by the observations made by this Court, in this appeal.
Having due regards, parties are hereby directed to meet their own costs.
18Crl.Appeal.No.25080/2019 For the sake of convenience and to speed up the remedy, the Appellant and the Respondent is hereby directed to appear before the Trial Court on 16.09.2019, at the behest, by treating the same as notice and without anticipating any summons or Court notice, from the Trial Court.
In case, if the Accused has deposited the amount, as directed U/Sec. 148 of N.I. Act, the same may be dealt with as per Law U/Sec. 143 of the said Act.
Transmit consigned records to the Trial Court alongwith True copy of this Judgment, forthwith, without causing any delay by securing acknowledgment without fail, inorder to ensure delivery of records.
--
(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 30th day of August, 2019) [Abdul-Rahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)