Bangalore District Court
Mr. G. Venkataram vs Mr. N. Somashekar on 29 January, 2019
IN THE COURT OF LXV ADDL CITY CIVIL AND SESSIONS
JUDGE; BANGALORE CITY
PRESENT
SRI. SUBHASH SANKAD
B.A., LL.M.
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 29th day of January, 2019
CRL.A. No.149/2018
APPELLANT/S:- Mr. G. Venkataram,
Aged about 47 years,
R/at Old No.211,
BBMP New No.93,
2nd Floor, 3rd Cross,
H.M. Nayak Road,
Jai Maruthinagar,
Nandini Layout Post,
Bangalore - 560 096.
(By Sri. TVR, Advocate)
V/s.
RESPONDENT/S:- Mr. N. Somashekar,
s/o. late Nanjappa,
Aged about 54 years,
No.42, 8th Main,
15th 'C' Cross,
Bandappa Garden,
Bangalore - 560 054.
(By Sri. VGM, Advocate)
* * * *
2 Crl.A.No.149/2018
JUDGMENT
The present appeal is filed by the appellant/accused under section 374(3) of Cr.P.C. challenging the order dated 04.01.2018 in C.C.No.27800/2015 passed by the learned XII Additional Chief Metropolitan Magistrate, Bengaluru.
2. The appellant is the accused and the respondent is the complainant before the trial Court, for the sake of convenience parties are referred by their ranks before the trial Court.
3. The brief facts of the case are as follows:-
The complainant and accused are good friends for the last 12 years. The complainant and accused are doing constructions material business at Bengaluru. After loss of constructions material business, the accused has doing sites sale business and real estate business. In the 3rd week of April 2015, the accused approached the complainant for a hand loan of Rs.10,00,000/- for his family necessities and also purchasing site for resale and also agreed to repay the said amount within five months along with 2% interest per month. The complainant considering the needs of the accused, paid a sum of Rs.10,00,000/- to the accused on 19.04.2015 by way of cash. It is further stated by the complainant 3 Crl.A.No.149/2018 that, as per the assurance with regard to repayment within five months from that date, the complainant approached the accused for repayment of the hand loan amount along with interest, at that time the accused had issued a cheque bearing No.662472 dated 05.10.2015 for a sum of Rs.10,00,000/- drawn on Canara Bank, Kodandaramapuram Branch, Bengaluru. The accused has instructed the complainant to present the said cheque on due date and assured that the interest amount will be repaid after the encashment of the said cheque. Believing the words of the accused, the complainant had presented the said cheque for encashment in Karnataka Bank Ltd., Yeshwanthapura Branch, Bengaluru, and on 16.10.2015 the same was returned with an endorsement as 'Funds Insufficient'. Immediately, the complainant informed the accused about dishonor of the said cheque, the accused has not repaid the hand loan to the complainant. Hence, the complainant having no other option got issued the legal notice to the accused on 20.10.2015 through RPAD calling upon the accused to pay the cheque amount within 15 days from the date of receipt of the said notice and it was returned with an endorsement as 'not claimed' returned to sender. Despite of service of legal notice, the accused neither 4 Crl.A.No.149/2018 repaid the cheque amount nor gave reply notice. The accused with dishonest intention and to cheat the complainant issued the cheque in question knowing without having sufficient funds in his account and thereby the accused has committed an offence punishable under section 138 of Negotiable Instrument Act.
Hence, the complainant's company filed the complaint before the trial court.
4. After presentation of complaint, the trial court took cognizance of offence, recorded the sworn statement and ordered for issuance of summons to accused. The accused appeared through his counsel and defended the case. After hearing the accused, the trial court recorded the plea of accusation. The accused pleaded not guilty of the accusation levelled against him and claimed to be tried. Hence, the case was posted for trial.
5. To prove his case, the complainant himself was examined as PW1 and also got examined one Sri. Lakshmipathi as PW2 and got marked the documents as Exs.P1 to 12. After completion of the evidence, the trial court examined the accused as required by Section 313 of Cr.P.C. The accused denied the 5 Crl.A.No.149/2018 incrementing evidence and he has not chosen to adduce defense evidence and got marked the document as Ex.D1. After completion of the trial, the matter was posted for arguments. After hearing the arguments on both the sides, the trial court passed the judgment convicting the accused and sentenced him to pay a fine of Rs.11,25,000/-.
6. Being aggrieved by the judgment passed by the learned Magistrate, the appellant has preferred the present appeal on the following among other grounds:-
1. The judgment of conviction and sentence passed by the trial court is perverse, illegal, unlawful and bad in law.
2. The impugned judgment and conviction and sentence passed by the trial court is contrary to facts, materials and evidence placed on records.
3. The trial court has erred in placing much reliance upon the evidence of PW1 when his evidence is totally unbelievable, unacceptable and throws great doubt upon his credibility and reasonability. 6 Crl.A.No.149/2018
4. The trial court has failed to given sufficient opportunity to the appellant/accused to cross-examine the complainant.
5. The trial court has in concluded mind of convicting the appellant and was in hurry to conclude the trial.
7. After registering the appeal, this court ordered for issuance of notice to the complainant. The complainant appeared through his counsel. The lower court records were secured. After receipt of the LCR, the appeal was posted for arguments. Heard arguments of both the sides. Hence, the matter was posted for judgment.
8. I have carefully gone through the lower court records, the impugned judgment of conviction and the grounds urged in the appeal memo.
9. In the light of the contention and grounds urged in the appeal memo. The following points arise for my consideration:-
1. Whether the impugned judgment of conviction is opposed to the settled principles of law, facts and probabilities of the case?
2. Whether the Learned Magistrate erred in not properly appreciating the oral and 7 Crl.A.No.149/2018 documentary evidence available on record in proper perspective.
3. Whether the appellant has made out any grounds to interfere in the impugned judgment of conviction and sentence?
4. What Order ?
10. My findings on the above points are:-
Point No.1 :- In the Negative
Point No.2 :- In the Negative
point no.3 :- In the Negative
Point No.4 : As per the final order
for the following :-
REASONS
11. Points No.1 and 2:- These points are taken together for discussion for the sake of convenience and to avoid repetition of facts.
12. The case of the complainant is that, he and accused are good friends for the last 12 years. The complainant and accused are doing constructions material business at Bengaluru. After loss of constructions material business, the accused has doing sites sale business and real estate business. In the 3rd week of April 2015, the accused approached the complainant for a hand loan of Rs.10,00,000/- for his family 8 Crl.A.No.149/2018 necessities and also purchasing site for resale and also agreed to repay the said amount within five months along with 2% interest per month. The complainant considering the needs of the accused, paid a sum of Rs.10,00,000/- to the accused on 19.04.2015 by way of cash. It is further stated by the complainant that, as per the assurance with regard to repayment within five months from that date, the complainant approached the accused for repayment of the hand loan amount along with interest, at that time the accused had issued a cheque bearing No.662472 dated 05.10.2015 for a sum of Rs.10,00,000/- drawn on Canara Bank, Kodandaramapuram Branch, Bengaluru. The accused has instructed the complainant to present the said cheque on due date and assured that the interest amount will be repaid after the encashment of the said cheque. Believing the words of the accused, the complainant had presented the said cheque for encashment in Karnataka Bank Ltd., Yeshwanthapura Branch, Bengaluru, and on 16.10.2015 the same was returned with an endorsement as 'Funds Insufficient'.
13. On the receipt of the bank endorsements as 'Funds Insufficient'. Having left with no other option the complainant 9 Crl.A.No.149/2018 got issued a legal notice to the accused on 20.10.2015 through RPAD calling upon him to discharge the cheque amount. Even after the stipulated period the accused did not pay the amount paid by the complainant. The accused knowing fully well that the cheque will not be honored and he issued the cheque with dishonest intention to cheat the complainant and thereby committed an offence punishable under section 138 of Negotiable Instrument Act.
14. The trial court after recording the sworn statement took cognizance of the offence and issued notice to the accused. The accused appeared through his counsel and contested the matter. The learned Magistrate convicted the accused and sentenced him to pay fine of Rs.11,25,000/- in default of payment of fine directed the accused to undergo simple imprisonment for a period of nine months. Being aggrieved by the judgment of conviction, the present appeal is filed, on the grounds mentioned supra.
15. After careful perusal of the lower court records, impugned judgment of conviction and the contention raised and 10 Crl.A.No.149/2018 the grounds urged by the appellant in the appeal memo, I proceed to answer the points in controversy.
16. The burden is on the complainant to prove that the cheque in question was issued towards the discharge of legally recoverable debt or liability. In this regard the complainant Sir. N. Somashekar himself was examined as PW1. In his evidence, he has reiterated the facts narrated in the complaint and got marked the documents as Exs.P1 to12. Ex.P1 is the cheque, Ex.P1(a) is the signature of the accused, Ex.P2 is the bank endorsement, Ex.P3 is the office of the legal notice, Ex.P4 is the postal receipt, Ex.P5 is the returned postal cover, Ex.P6 is the lease agreement, Exs.P7 and 8 are the two electricity bills and Exs.P9 to 12 are the four LPG gas receipts. I have gone through all the documents produced by the complainant. The documents produced by the complainant show that the accused had issued the cheque towards the repayment of the amount i.e., discharge of his debt.
17. Now coming to the provisions of law, Sec.138 of N.I.Act has been enacted to provide stability to credibility to the financial transactions. The Main ingredients of the Sec.138 of N.I.Act as follows:
11 Crl.A.No.149/2018
(1) Drawing up of cheque by the accused towards payment of an amount of money for the discharge, in whole or in part or any debt or any other liability.
(2) Return of the cheque by the bank as unpaid. (3) The drawer of cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso(b) to Sec.138 of N.I.Act.
18. The explanation appended to the section provides that, the 'debt or other liability' for the purpose of this Section means a legally enforceable debt or other liability.
19. Apart from this, Sec.139 of N.I.Act lays down a presumption in favour of the holder of cheque in the following terms.
"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec.138 for the discharge in whole or in part, of any debt or other liability."
20. Also, Sec.118 N.I.Act states:- "Until the contrary is proved, the following presumptions shall be made:- 12 Crl.A.No.149/2018
(a) That every negotiable instruments was made or drawn for consideration and that every such instrument, when it has been accepted indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration".
21. On careful perusal of Sec.139 of N.I.Act r/w Sec.118 N.I.Act, there is a presumption in favour of the complainant that, the cheque was issued towards discharge of legally enforceable debt or liability, the complainant has discharged his initial burden. Hence, the presumption goes in favour of the complainant
22. The burden is now upon the accused to rebut the presumption available to the complainant. To rebut the presumption available to the complainant, the accused has cross- examined the complainant in length. I have carefully gone through the cross-examination of the complainant. Nothing beneficial could be elicited from the mouth of the PW1- complainant. After completion of the complainant evidence, the accused was examined as required under Section 313 of Cr.P.C. Though, the accused has denied the incriminating statement and he has not choosen to adduce any evidence on his behalf. Therefore, in my view, the accused has failed to rebut the 13 Crl.A.No.149/2018 presumption available to the complainant. Hence, I am of the opinion that, the trail court has rightly observed that the accused had issued cheque in question towards discharge of legally enforceable debt of Rs.10,00,000/- i.e., hand loan taken by the accused. Hence, on careful perusal of the lower court records and the impugned judgment of conviction, I am of the opinion that the trial court has rightly passed the judgment of conviction. The impugned judgment is in accordance with the settled principle of law and facts of the case. There is no error in the judgment passed by the learned Magistrate and no grounds are made out by the appellant to interfere with the impugned judgment of conviction. Accordingly, I answer points No.1 and 2 in the 'Negative'.
23. Point No.3:- Now coming to the sentence part. The trial court has imposed sentence of Rs.11,25,000/-, out of which Rs.11,20,000/- shall be paid to the complainant as compensation and Rs.5,000/- shall be remitted to the state exchequer. I am of the opinion that, judgment of conviction and sentence passed by the trial court does not suffer from any irregularity and it does not call for any interference by this court. Accordingly, point No.3 in the 'Negative.' 14 Crl.A.No.149/2018
24. Point No.4:- In view of my findings on point No.1 to 3, 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 the XII Additional Chief
Metropolitan Magistrate, Bangalore, in
CC.No.27800/2015 dated 04.01.2018 is
hereby confirmed.
Send a copy of this judgment to the
lower Court along with LCR forthwith.
(Directly dictated to stenographer on computer, typed by her and then pronounced in open Court on the 29th day of January, 2019) (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.