Bangalore District Court
Nandishwarachar K N vs K M Shivashankar on 17 August, 2024
KABC010040172020
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SMT.RASHMI.M.
BA.LL.B., LL.M.
LXVII ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Dated this the 17th day of August 2024.
Crl. Appeal No.244/2020
APPELLANT : Mr.Nandishwarachar.K.N.
S/o.Gangadharachar,
Aged about 58 years,
R/at.No.30, "Muddanna Nilaya",
6th Main Road, Subbaiah Road,
Vyalikaval,
Bengaluru.
(By Sri.M.L., Advocate)
.Vs.
RESPONDENT : Mr.K.M.Shivashankar,
S/o.Mariswamy,
Aged about 34 years,
R/at.No.36,
Near Balamuri Ganesha Temple,
Rajagopalanagara,
Peenya 2nd Stage,
Bengaluru.
(By Sri.A.K., Advocate)
Crl.Appeal No.244/2020
2
JUDGMENT
This appeal is preferred by the appellant challenging the conviction judgment and order of sentence passed by the learned XV Addl. C.M.M., Bengaluru in C.C.No.30603/2018, dated:8.01.2020 as to the alleged offence under Section 138 of N.I.Act and prays to set aside the impugned judgment & order of sentence and acquit the accused.
2. The appellant herein was the accused and respondent 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 and accused are known to each for the past several years. The accused had approached the complainant and sought for hand loan of Rs.2,00,000/-to meet his family necessities. Considering the request of the appellant, on 19.02.2018 the complainant has lent loan of Rs.2,00,000/- to the accused by way of cash and the accused had agreed to repay the said amount within six months along with interest. Towards the discharge of the loan amount, the accused had issued the cheque bearing No.032462, dated:12.08.2018 for Rs.2,00,000/- drawn on State Crl.Appeal No.244/2020 3 Bank of India, Madhavanagar, Crescent Road, Bengaluru. On 25.09.2018 the complainant had presented the said cheque for encashment through his banker, the said cheque came to be dishonoured with an endorsement "Funds Insufficient" vide Banker's Memo dated:27.09.2018. Thereafter the complainant got issued the legal notice dated:11.10.2018 calling upon the accused to pay the cheque amount. Despite service of legal notice, the accused has failed to repay the cheque amount, but he issued an untenable reply. Hence the complainant was constrained to file the complaint under Section 200 of Cr.P.C., against the accused for the offence punishable under Section 138 of N.I.Act.
The learned Addl. C.M.M., Bengaluru after taking cognizance, recorded the sworn statement of the complainant and registered the case as C.C.No.30603/2018 and issued summons to the accused. The accused had appeared before the court and engaged his advocate, he was enlarged on bail. The plea was recorded. The accused pleaded not guilty and claimed to be tried. The sworn statement of the complainant was treated as examination in chief of P.W.1 and marked 9 documents from Exs.P.1 to 9. After closure of the evidence of complainant, the statement of accused was recorded under Section 313 of Cr.P.C. The accused has denied the incriminating evidence Crl.Appeal No.244/2020 4 against him. The accused got examined himself as D.W.1 and no documents were marked on his behalf. After hearing the arguments, the learned Magistrate has convicted the accused for the offence punishable under Section 138 of N.I.Act and sentenced to pay a fine of Rs.2,10,000/-, in default he shall undergo simple imprisonment for six months. It is further ordered that out of the fine amount, a sum of Rs.2,05,000/- shall be paid to the complainant as compensation and the remaining balance of Rs.5,000/- shall be remitted to the State.
4. The appellant/accused has preferred this appeal on the following grounds :
It is contended that the impugned judgment and order of sentence passed by the learned Magistrate is arbitrary, perverse and illegal and the same is passed mechanically without application of mind. The impugned judgment is not based on any materials and the same is passed mechanically. On the other hand, the impugned judgment and order of sentence passed by the trial court is opposed to the evidence and other materials available on record. The trial court has failed to note that the respondent has no financial capacity to lend a sum of Rs.2,00,000/- to the appellant, as he is an unemployed person. Admittedly the complainant/ respondent is an unemployed person for the last 1½ Crl.Appeal No.244/2020 5 year prior to the alleged loan transaction and that the respondent did not produce any document in support of his claim that he was working and in the absence of the same, the trial court could not have convicted the appellant for the alleged offence. The trial court has failed to consider the fact that at the time of giving loan to the appellant/accused, the complainant/respondent has not obtained any documents. The learned Magistrate has failed to note that the defense of the accused is that the respondent has requested the appellant for hand loan of Rs.2,00,000/- for a period of two months in order to overcome his financial difficulties and when the appellant has expressed his inability to lend the amount, the respondent has requested him to give him a signed undated cheque for Rs.2,00,000/- in his own name so as to enable him to overcome his financial difficulties and that the appellant believing the words of respondent gave him a signed undated cheque for Rs.,2,00,000/- in his name. The respondent has misused the said cheque by filling up the date column and got the said cheque dishonoured and filed a false complaint against him. The defense raised by the appellant is quite probable. The trial court could not have convicted the appellant for the offence under Section 138 of N.I.Act. Hence prayed to allow the appeal by setting aside the impugned judgment and order of sentence passed by the trial court.
Crl.Appeal No.244/2020 6
5. The respondent put his appearance though his counsel.
6. The trial court records were secured.
7. Both the counsels have filed written arguments.
8. The learned advocate for appellant has relied on the following decisions :
1. (2019) 5 SCC 418 (Basalingappa .Vs. Mudibasappa) ;
2. (2014) 2 SCC 236 (John K. Abraham .Vs. Simopn C. Abraham & Another) ;
3. ILR 2008 Karnataka 4629 (Shiva Murthy .Vs. Amruthraj) ;
4. (2009) 2 SCC 513 (Kumar Exports .Vs. Shrma Carpets).
9. The points raised for consideration are as under:
1. Whether the appellant/accused has made out sufficient grounds to interfere with the impugned judgment and order of sentence passed by the trial court ?
2. What Order?
10. My findings to the above points are:
POINT No.1 : Negative, POINT No.2 : As per final order, for the following:
Crl.Appeal No.244/2020 7 REASONS
11. POINT No.1:- I have considered the complaint averments, oral and documentary evidence placed before the trial court along with appeal averments and the decisions placed before this court.
12. It is the specific contention of the learned counsel for appellant that the respondent is an unemployed person, has no financial capacity to lend a sum of Rs.2,00,000/- to the appellant as alleged by him. In this regard it is pertinent to note that in the cross examination of P.W.1 it is elicited that he was working in Global Power Control as Service Engineer for 10 years and from one year he is unemployed. He denied the suggestion that he has never worked in the said organization. Further it is elicited that Rs.2,00,000/- was given to the accused out of his savings, out of which some amount was withdrawn from the bank and the remaining was in the house. It is also elicited that on 19.02.2018, the day on which he said to have given money to the accused he had not drawn any money from the bank.
13. In view of the said evidence the appellant has contended that the respondent did not have the financial capacity to lend him money as alleged by him. By mere suggestions made during the cross Crl.Appeal No.244/2020 8 examination of P.W.1 does not by itself establish that the respondent did not have any money/financial capacity to lend the money to the appellant. It is necessary to note that in the proceedings under Section 138 of N.I.Act, the burden to prove that the complainant did not have the financial capacity to lend him money lies upon the accused when he specifically takes such a defense. The complainant's role is to establish a prima- facie case, showing that the cheque was being issued by the drawer, the cheque was presented within a valid period, the cheque was dishonoured due to 'Insufficient Funds'. As discussed supra, the appellant/accused has just made suggestions that the respondent/complainant did not have financial capacity to lent him money, but has not placed any corroborating oral or documentary evidence before the court to prove his contention.
14. It is further contended that the trial court has failed to take note of the defense of the appellant that the respondent/complainant had requested the appellant for hand loan of Rs.2,00,000/- for a period of two months in order to overcome his financial difficulties. When the appellant expressed his inability to lend Rs.2,00,000/- to the respondent, the respondent requested him to give him a signed undated cheque for Rs.2,00,000/- in his own name so as to enable him to overcome his financial difficulties. The appellant Crl.Appeal No.244/2020 9 believing in the words of the respondent gave him a signed undated cheque for Rs.2,00,000/-, the said cheque was misused by the respondent by filling the date and thereafter when he presented the same in the bank, it was dishonoured. Thereafter he filed a false complaint against the appellant.
15. In view of the aforesaid contention taken by the appellant, it is at first necessary to refer to the reply notice (Ex.P.9) dated:2.11.2018 wherein at para No.2 it is stated that "there is no debt or liability and that too to the extent of Rs.2,00,000/-. Hence the question of issuing the cheque in question does not arise". In the same para, it is stated that "it is not within the knowledge of the appellant/accused that the cheque was dishonoured with an endorsement "Funds Insufficient" on 27.09.2018". It is further contended in para No.5 that "the respondent/complainant was in need of Rs.2,00,000/- during the first week of August 2018 for a period of two months and he requested the appellant/accused to lent a sum of Rs.2,00,000/- to him for a period of two months in order to meet his urgent commitments. When the appellant expressed his inability to lent Rs.2,00,000/-, the complainant/respondent had requested to hand over the undated signed cheque for Rs.2,00,000/- to him, with the help of Crl.Appeal No.244/2020 10 which he would overcome his problems within two months and he would immediately return the undated cheque of Rs.2,00,000/-. The complainant/respondent instead of returning back the cheque has presented the same in the bank. There is no debt or any liability to be discharged by the appellant/accused. The respondent/complainant illegally, unlawfully and without any authority with an intention to cheat the appellant/accused had presented the cheque. As such it can be safely said that the appellant has taken contradictory stand regarding issuance of cheque.
16. Further in the evidence of the accused who got examined himself as D.W.1, he has reiterated the contentions taken in the reply notice. In his cross examination it is elicited that other than the date all other entries in the cheque are in his hand writing. It is elicited that before receiving the legal notice from the complainant calling upon him to pay Rs.2,00,000/- he had not issued any notice to the respondent/complainant calling upon him to handover the cheque alleged to have been given by the appellant/accused. In this regard it is pertinent to note that in support of the said contention the appellant has not placed any oral or documentary evidence. Also from his evidence it is clear that he had not initiated any legal action against the complainant for the alleged Crl.Appeal No.244/2020 11 misuse of the cheque by the complainant. Also no explanation is forthcoming as to what prevented him from taking any legal action against the complainant/respondent.
17. In view of the discussion made supra, I am of the considered view that the learned Magistrate has rightly observed that the defense of the accused is not at all sustainable and the same is discarded. Also the complaint is filed within the period as contemplated under Section 138 of N.I.Act. As such the complainant has complied with the ingredients of Sections 138(a) &
(b) of N.I.Act. Further from the evidence of the appellant/accused it is clear that admittedly he had issued a signed cheque, but as discussed supra the appellant has not produced any material to show that the instant cheque has not been issued to the complainant towards discharge of legally enforceable debt of Rs.2,00,000/-. In view of the oral and documentary evidence and the judgment passed by the learned Magistrate, this court is of the considered view that the appellant has not made out grounds to set aside the judgment passed by the learned Magistrate. Accordingly the Point No.1 is answered in the Negative.
18. POINT No.2 : My finding on this point is as per following :
Crl.Appeal No.244/2020 12 ORDER The Crl. Appeal filed by the appellant is hereby dismissed. Consequently, the impugned judgment passed by the learned XV Addl. C.M.M., Bengaluru in C.C.No.30603/2018, dated:8.01.2020 stands confirmed.
Send back the records to the trial
court along with the copy of this
judgment.
(Dictated to then Stenographer Grade-II directly on computer, corrected, signed and then pronounced by me in the open court on this the 17 th day of August 2024) (RASHMI.M) LXVII Addl.City Civil & Sessions Judge, BENGALURU.
Digitally signed by RASHMI RASHMI M Date:
M 2024.08.17
17:06:45
+0530
Crl.Appeal No.244/2020
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