Bangalore District Court
K.Shivarama Shetty vs Sri K.M.Bhojaraj Shetty on 6 November, 2015
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY.
(CCH-67)
DATED THIS THE 06th DAY OF NOVEMBER, 2015
PRESENT
SRI.VIJAYAN.A., B.A.(LAW), LL.M.
LXVI Addl.City Civil & Sessions Judge
Crl.A.No.1200/2014
APPELLANT K.Shivarama Shetty
Aged about 60 years
R/o No.4, 5th Cross
Jai Bharath nagar
M.S.Nagar Post,
Bangalore-33.
(Rept. by Smt. S.Kanchana, Adv.)
VS.
RESPONDENT Sri K.M.Bhojaraj Shetty
s/o Late Sri Mahabala Shetty
Aged about 45 years
Venkateshwara Real Estate
and Land Developers
No.26/4, Mudappa Road
Maruthi Sevanagar
Bangalore-560 033
(By Sri A.Nancy Prince and
Associates)
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JUDGMENT
Appellant has preferred this appeal U/s.374 of Cr.P.C., being aggrieved by judgment of conviction and sentence passed in C.C. No.26983/2011 dated 01.10.2014 by the learned XV Addl. Judge Court of Small causes and XXIII ACMM, Mayo Hall Unit, Bengaluru.
2. Brief facts of the complainant's case are that:-
The accused had approached the complainant for hand loan and borrowed a sum of Rs.6,00,000/- and on demand the accused had issued two cheques bearing No.089779 dt. 02.02.2011 and 089780 dt.21.02.2011 drawn on Vijaya Bank, Cox Town Branch, Bengaluru for Rs.3,00,000/- each and also executed on-demand promissory note for the said sum. The complainant had presented said two cheques for encashment through his banker Canara Bank, Cox Town Branch, Bangalore on 23.02.2011 and said cheques were
3 Crl.A.1200/2014 returned with endorsement of 'funds insufficient'. After receipt of said information, complainant caused legal notice against accused on 28.02.2011 through RPAD, calling upon the accused to pay the cheque amount due to complainant and it was served on accused on 03.03.2011. But the accused did not pay the amount due nor complied the demand and thereby committed offence punishable U/s.138 of N.I.Act. Hence, the complainant prayed for taking legal action against the accused.
3. The learned magistrate was pleased to take cognizance and sworn statement of complainant was recorded and issued summons to the accused. Thereafter, the complainant has examined himself as P.W.1 and got marked Ex.P.1 to P.12 and closed his side of evidence. The statement of accused under Sec. 313 of Cr.P.C. was recorded and accused got himself examined as D.W.1, but no documents were marked on 4 Crl.A.1200/2014 his behalf. The trial court after hearing the arguments on both sides passed the impugned judgment dated 01.10.2014 convicting the accused / appellant for the offence punishable under Sec.138 of N.I. Act and sentenced him to pay a fine of Rs.5,000/- and in default he shall undergo S.I. for a period of 30 days. Further, accused is directed to pay a sum of Rs.10,00,000/- to the complainant as damages under Section.357 of Cr.P.C. within three months from the date of said order.
4. Aggrieved by said judgment of conviction and sentence the appellant herein has approached this court for the following among other grounds:-
a) The impugned judgment of conviction and sentence passed by the court below is not maintainable in law or on facts and the reasons assigned are not at all maintainable and it is not a speaking order;
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b) The Court below has totally ignored the evidence placed on record by the appellant /accused;
c) The court below ought to have seen that the cheques in question were not issued by accused and the learned Magistrate without looking into the facts and probabilities has appreciated the case of the respondent and convicted the accused/appellant;
d) It is submitted that the appellant and respondent have no relationship between them and there is no document is forthcoming before issuing the cheques in favour of the respondent and hence the complaint filed by respondent is not maintainable in law or on facts and hence the impugned judgment is liable to be set aside;
e) The court below passed the impugned judgment based on presumption and assumption made in the complaint without appreciating the defence evidence and the cross-examination of PWEx.P1 and 6 Crl.A.1200/2014 hence, the impugned judgment is highly illegal and contrary to law and liable to be set aside;
Hence, learned advocate for appellant prayed this court to set aside the judgment of conviction and sentence passed in C.C. No.26983/2011 dated 01.10.2014 by the learned XV Addl. Judge Court of Small causes and XXIII ACMM, Mayo Hall Unit, Bengaluru and acquit the appellant in the interest of justice and equity. Along with the appeal, appellant has also filed application U/s.389 of Cr.P.C., to stay the judgment dated 01.10.2014 in C.C. No.26983/2011 passed by the learned XV Addl. Judge Court of Small causes and XXIII ACMM, Mayo Hall Unit, Bengaluru and to suspend the execution of sentence for a period of three months. This court vide order dt.3.11.2014 stayed the operation of judgment and sentence for a period three months and directed the appellant to deposit 5% of the fine amount before the trial court 7 Crl.A.1200/2014 within 40 days from the date of said order and also directed the appellant toappear before the trial court and to execute personal bond for Rs.1,00,00/- with likesum one surety undertaking to appear before the said court and to suffer sentence in case of his failure in this appeal and issued notice to respondent and call for lower court records. Thereafter appellant failed to report compliance by 3.12.2014 and he was absent. On that day, learned counsel for respondent present and filed vakalth. In the meanwhile, this court received the lower court record. But no representation from the side of appellant continuously. After waiting for appearance of appellant to putforth his case, this court finally heard arguments of respondents on 3.10.2015.
5. On the basis of case made out, following points arise for my determination:
1) Whether the impugned order is illegal, arbitrary and requires interference by this Court ?
8 Crl.A.1200/2014
2) What Order?
6. My findings to the above points are:
Point No.1:- In Negative, Point No.2:- As per final Order, for the following:
REASONS
7. POINT No.1: During the course of trial complainant examined himself as PW1 by filing his affidavit in lieu of his examination-in-chief and got marked 12 documents as Ex.P.1 to 12. PW1 in his cross-examination deposed that he is residing in Maruthi Sevanagara. Himself and accused belongs to same place and he knows him from several years and there was no previous financial transaction between him and the accused. Accused has taken hand loan of Rs.6,00,000/- from him for completion of construction work of his house and agreed to repay the same within 4-5 days. As security he had executed on-demand promissory note. At that time his wife was with him.
9 Crl.A.1200/2014 Accused is running a hotel and he do not know his place of residence. Wife and children of accused also know him and family members of accused know about the fact that on 2.2.2011 he had given loan to accused. On the same day accused had issued two cheques. After issuance of notice, wife of accused had given him cheque worth Rs.7,50,000/- drawn on Vijaya Bank, Cox Town Branch. He could not find any difference in the signature. Because it was already written at the time of issuance. He further deposes that the cheque issued by wife of accused also bounced. Hence, they have filed case against wife of accused also and the same is pending. He is having one Finance Enterprises by name of Venkateshwara Enterprises. He is doing transaction worth Rs.10,00,000/-. He is income tax assessee. He has not entered the loan given to the accused in his I.T.Returns. He denied several other suggestions put by learned counsel for accused.
10 Crl.A.1200/2014
8. Thereafter accused examined himself as DW1. In his chief-examination, he clearly admitted that complainant is known to him. But he did not had any financial transaction with him. When he received notice from the court, then only he came to know about the cheques in the hands of complainant. But he had replied to the notice of the complainant. The signature found in those cheque not belongs to him. Hence, he prayed the court to dismiss the complaint in the interest of justice and equity. In his cross examination he admitted that himself and complainant belongs to same place and same community and complainant is doing finance as well as real estate business and they are having houses in the nearby place. He is doing hotel business in Bengaluru and when one document was shown he identified it as sale deed executed by himself and his wife in favour of Chandrashekar and Sujatha and it was marked as Ex.P.11. He is having 11 Crl.A.1200/2014 S.B.Account only in Vijaya Bank and he has not issued any cheques to Bhojarajashetty through cheque book issued by Vijaya Bank. He identified his signature in vakalath at Ex.P.12 as Ex.P.12(a). He admitted his signature on Ex.P.1 to Ex.P.3 as Ex.P.1(a) to Ex.P.3(a), but denied his signature in Ex.P.5 and Ex.P.6 promissory note and admitted that he did not sent any reply notice to complainant and he had not lodged any complaint before the police for illegal possession of his cheques in the hands of complainant and he clearly admitted that complainant has filed case against his wife for recovery of Rs.7,50,000/-, which is pending in the court and he denied suggestions put by learned counsel for complainant. DW1 though he has admitted that he has given reply to the notice of the complainant , but in his cross-examination denied the same. But DW1 has admitted his signature in the cheque Ex.P.1 to Ex.P3 at Ex.P.1(a) to Ex.P.3(a). He also admitted 12 Crl.A.1200/2014 complainant has filed another case against his wife for recovery of Rs.7,50,000/-. Under these circumstances, this court finds that there is no illegality or infirmity in the judgment and sentence passed by learned trial judge. Accordingly, there is no reasonable ground to interfere into the judgment and sentence arrived by the learned trial judge. Accordingly, this court holds POINT No.1 in the NEGATIVE.
9. POINT No:2 In view of my finding to the point No.1 and for reasons discussed above, I proceed to pass following ORDER The Criminal Appeal filed by the appellant is hereby dismissed.
Order of Judgment of conviction and sentence passed by the learned XV Addl. Judge Court of Small causes and XXIII ACMM, Mayo Hall Unit, Bengaluru in C.C. No.26983/2011 dated 01.10.2014 is here by confirmed, subject to a correction in the operative portion of the order i.e., in place of 13 Crl.A.1200/2014 the word 'damages', the word 'compensation' is to be substituted.
Send LCR along with the copy of this order forthwith to the trial court.
(Dictated to the judgment writer, corrected by me and pronounced by me in the open court on this 06th day of November, 2015) (A.VIJAYAN), LXVI Addl.CC & SJ, Bangalore.
14 Crl.A.1200/2014 06.11.2015 Case called out and judgment passed and pronounced in open court. Operative portion of the order is as under:
ORDER The Criminal Appeal filed by the appellant is hereby dismissed.
Order of Judgment of conviction and sentence passed by the learned XV Addl. Judge Court of Small causes and XXIII ACMM, Mayo Hall Unit, Bengaluru in C.C. No.26983/2011 dated 01.10.2014 is here by confirmed, subject to a correction in the operative portion of the order i.e., in place of the word 'damages', the word 'compensation' is to be substituted.
Send LCR along with the copy of this order forthwith to the trial court.
LXVI Addl.CC & SJ, Bangalore.