Bangalore District Court
Smt. Thippakka W/O. Late Sanjeev vs Age: 58 Years on 10 May, 2019
IN THE COURT OF 55TH ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE (CCH-56)
: Present :
Smt. H.G.Nagarathna, B.A., LL.B.,
55th Addl. City Civil & Sessions Judge,
Bangalore
Crl. Appeal. No. 1049/2018
Date: The 10th day of May 2019
APPELLANT/ Smt. Thippakka w/o. Late Sanjeev,
ACCUSED : Age: 58 years, r/at No.900,
6th 'A' Main, 1st Cross, Koramangala,
Bangalore-560 086.
(By: Sri M.R.Nagabushana, Adv.)
- V/s -
RESPONDENT/ Smt. C.R. Ramanna, w/o. Late Rangappa,
COMPLAINANT : Age: 60 years, r/at No.80/A,
1st Cross, Muneshwara Block,
Bangalore-560 003.
(By: Sri Lingaraj M., Adv.)
JUDGMENT
This is a Criminal Appeal filed by Appellant/Accused against Respondent/complainant u/sec 374(3) of the Cr.P.C challenging the Judgment and order dated 7-10-2017 passed by the learned 12th ACMM, Bangalore in C.C.No.10831/2015 convicting the Appellant/accused.
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2. For the sake of convenience the "Appellant/accused"
and "Respondent/complainant" are hereinafter referred to as "accused" and "complainant" respectively.
3. The facts leading to this Crl. Appeal, in brief, are as under:-
3(a) Both the complainant and accused are known to each other for the last more than 10 years. On account of the well acquainted with the complainant, the accused had approached the complainant and requested for advancement of the hand loan an amount of Rs.4,00,000/- on 7-1-2014 for her urgent financial commitments and domestic needs and accordingly, believed the version of the accused and on good faith the complainant had advanced an amount of Rs.4,00,000/- to the accused by way of cash and at that time, the accused had assured and agreed that, she will repay the said amount within 3 months from the date of advancement and along with interest @ 1.5% per month. After a lapse of stipulated period, on repeated request and demand made by the complainant to the accused for repayment of the said amount and at that time the accused had postponed the same by 3 Crl.A. No.1049/2018 giving one or other pretext and finally for discharge of the said loan amount, the accused had issued the cheque bearing No.465511, dt. 3-3-2015 for Rs.4,00,000/- drawn on Bangalore City Co-Operative Bank Limited, Chamarajpet branch, Bangalore and assured that, the said cheque would be honoured on its presentation. Then, based on the assurance given by the accused, the complainant has presented the said cheque for encashment through his banker i.e., M/s. Canara Bank, Vyalikaval branch, Bangalore on 3-3-2015, but the said cheque was dishonoured with an endorsement as "Funds Insufficient" on 5-3-2015 and thereafter, the complainant has informed the said fact to the accused, but the accused had failed to respondent the same. Then, the complainant without having any other alternative and efficacious remedy had issued the legal notice through his counsel on 19-3-2015 by way RPAD, calling upon her to repay the said amount within 15 days from the date of receipt of the said legal notice and it was duly served to the accused on 25-3-2015 and after service of the legal notice the accused had not repaid the borrowed loan amount, but she had given evasive and untenable reply to the legal notice issued by the 4 Crl.A. No.1049/2018 complainant. Hence the complainant approached this court contending that, the accused has committed the offence p/u/sec. 138 of N.I. Act.
3(b) The trial court took cognizance of offence and issued process against the accused. The accused appeared before the trial court through his counsel and got released on bail. The substance of accusation was read over and explained to accused. They pleaded not guilty and claimed to be tried. Accordingly the trial court has tried the case.
3(c) The complainant, in order to prove his case, got himself examined as PW1 and produced 7 documents such as cheque, counter foil, Bank endorsement, office copy of legal notice, the postal receipt, the postal acknowledgment and the reply notice.... etc. and got them marked as Exs.P.1 to 7. The statements of accused u/sec. 313 of Cr.P.C were recorded. Then the accused has examined herself as DW1 and not produced any documents on her behalf. Produced documents Ex.C1 Vakalath and Ex.C2 Accusation.
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3(d) The learned trial judge heard both side arguments and raised the following points for consideration:
1) Whether the complainant proves that the accused had issued cheque bearing No.465511, dt.3-3-3015 for Rs.4,00,000/-, drawn on Bangalore City Co-Operative Bank Limited, Chamarajpet branch, Bangalore for discharge of the loan amount and when the said cheque presented for encashment, it was dishonoured with an endorsement, it was dishonoured with an endorsement "Funds Insufficient" and after issuance of the legal notice she fails to repay the said amount and thereby, the accused have committed offence punishable U/sec. 138 of N.I. Act?
2) What order?
3(e) The learned trial judge has answered the point No1 is in the affirmative and has convicted the accused of the offence p/u/sec. 138 of N.I Act by the impugned Judgment and order dt. 7- 10-2017. The learned trial judge has ordered that the accused shall pay the fine of Rs.4,02,000/-; in default of payment of said fine amount, the accused shall undergo simple imprisonment for a period of three months; out of the said fine amount of Rs.4,00,000/- shall be paid to the complainant as compensation & Rs.2,000/- shall be remitted to the State.
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4. The accused, being aggrieved by the Judgment and order dated. 7-10-2017, has preferred this appeal on the following amongst other grounds:
1) The trial court has ignored the facts of the case narrated by itself in the brief facts of the case in the impugned judgment. The impugned judgment is not sustainable in law or on facts of the case.
2) The trial court has not properly look into the contention of the legal notice and the complaint, there is lot of contradiction from the contention of the complaint and the deposition given by the respondent during the cross-examination.
3) The trial court has blindly come to the conclusion that respondent had financial capable to lend huge money to the appellant in the absence of the proof to establish the financial capacity of the respondent.
4) The impugned order is bad, illegal and unsustainable in the eyes of law.
Because of these above mentioned grounds, the Appellant/ accused has prayed for allowing the appeal and for setting-aside the impugned Judgment and Order.
5. In pursuance of notice issued in this appeal case, the respondent/complainant has appeared through his Advocate. 7 Crl.A. No.1049/2018
6. The lower court records are secured.
7. Heard by both. Perused the same.
8. Now the following points will arise for my consideration and determination:
:POINTS:
1) Whether this appeal is entitle to allow?
2) What order?
9. My findings 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
Point No.1 :-
10. This is an appeal filed by the appellant u/sec. 374(3) of Cr.P.C to set-aside the orders passed by the trial court in C.C.No.10831/2015 dt.7-10-2017 in convicting the accused for the offence u/sec.138 of N.I. Act and sentence him to pay a fine of Rs.4,02,000/- in default thereof he shall undergo simple imprisonment for three months and out of the said amount, Rs.4,00,000/- shall be paid to the complainant as compensation, and rest of the amount viz., Rs.2,000/- shall be remitted to the State. 8 Crl.A. No.1049/2018
11. Now on perusal of the evidence on record and also the documents filed by the complainant and also the contention raised by the appellant as a defence before the trial court and this court that she did not signed on the disputed cheque. The signature on the cheque Ex.P1 is not belongs to her. However, the trial court has taken into consideration her signature and vakalath signature, plea and come to the conclusion that the signature is of the appellant only. But on keen perusal of the signature in the vakalath her signature starts the letters w ¥Àà PÀÌ . In the statement of her evidence also discloses that the writes as w ¥Àà PÀÌ not in a proper letters, but in a rustic, uneducated written letters. In all the signature on the court record she uses her signature as w ¥Àà PÀÌ in a rustic villager letter. In the plea also she signed w ¥Àà PÀÌ as a rustic village. Now comparing her signature on these court records with that of the signature on the cheque is concerned the last letter PÀÌ is seems to be not that of PÀÌ. In the Ex.P1 disputed cheque PÀÌ varies in comparing with the signature on plea, vakalath, statement before the court. Therefore, the signature is 9 Crl.A. No.1049/2018 to be scientifically examined in respect of use of pen force in writing the letters of her name, the strokes used by her the gap of each letter and the writing of PÀÌ are to be ascertained through forensic examination. The use of pen force and writing of letters and whether there is a forcible stroke on each letter and forcible compulsion writing of PÀÌ . The trial court ought to have send the document for forensic lab to ascertain whether the style, mode, stroke, unusual letters and compulsion on the letters at the time of writing or similar to that of cheque. The appellant is repeatedly taken a defence before the trial court and this court that signature on the disputed document is not of her. Therefore, the genuineness of her signature is to be clarified by sending the disputed signature on the document with standard example signatures and model signatures of her. The signatures of the appellant are to be taken in the open court in the presence of the P.O and send the same to the handwriting expert for comparison with regard to the disputed document signature in compare with standard signature taken in the open court. Hence I am of the view that without the forensic lab examination it is not proper to 10 Crl.A. No.1049/2018 go in detail with regard to the money transaction held between the parties. Let the things come truth with regard to the document on disputed signature is concerned. Hence I answer point No.1 Partly in the affirmative.
Point No.2:
12. Keeping in view the findings already given on point No.1 above, I proceed to pass the following:
ORDER The appeal filed by the appellant is hereby partly allowed with directions to the trial court to send back the disputed document Ex.P.1 cheque to the forensic science lab for scientific examination along with standard signatures of the appellant.
The case is remitted back on the file of the trial court to send the disputed document along with standard signature of the appellant and there after on receipt of hand-writing expert opinion the matter is to be proceed in accordance with law. In consequent, the Judgment and conviction order passed by the trial court is kept in abeyance till the disposal of the case on merits on reasoning and findings of the handwriting expert.11 Crl.A. No.1049/2018
The Hand writing expert fee is to be paid by appellant and the case is to be disposed-off within 3 months from the date of this order.
Send back the LCR forthwith by keeping a copy of this judgment.
(Dictated to the Judgment writer on computer and after corrections, pronounced by me in the Open Court on this the 10th day of May 2019.) (H.G.Nagarathna) th 55 Addl. City Civil & Sessions Judge, Bangalore.