Bangalore District Court
L.Chandrashekar vs Harish Narayana Reddy on 21 November, 2022
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Crl.A.No.991/2018
KABC010100902018
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-56)
:Present :
SRI SHRIRAM NARAYAN HEGDE,
B.A., LL.M.,
LV Addl. City Civil & Sessions Judge,
Bengaluru.
Crl.A.No.991/2018
DATE: THE 21st DAY OF NOVEMBER 2022
APPELLANT/S L.CHANDRASHEKAR
S/O LATE LINGAPPA
AGED ABOUT 51 YEARS,
TECH ASST. 'A' ID NO.214136
DEFENCE BIO-ENGINEERING AND
ELECTRO MEDICAL LABOURATORY
(DEBEL) C.V. RAMAN NAGAR,
POST BOX NO.9326,
BENNGALURU - 560 093.
(Rep. by Sri.C.R.Srinivas, Adv)
Versus
RESPONDENT HARISH NARAYANA REDDY
S/O NARAYANA REDDY
AGED ABOUT 42 YEARS,
RESIDING AT NO.18, 1ST MAIN ROAD,
G.M. TEMPLE STREET, MATADAHALLI,
R.T. NAGAR POST, BENGALURU - 32.
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Crl.A.No.991/2018
(Rep. By Sri.V.S.K., Adv)
JUDGMENT
This appeal is preferred by the appellants /accused under Section 374 (3) of Cr.P.C. challenging the judgment of conviction dated 02.05.2018 passed by the XV ACMM, Bengaluru in C.C..No.147/2017.
2. By the aforesaid judgment, the trial court has convicted this appellants for an offence punishable under Section 138 of N.I. Act.
3. The brief facts which are necessary for the appreciation of present appeal are that, the complainant and the accused are known to each other. For his financial necessity, the accused approached the complainant and requested to lend loan of Rs.8 lakhs. Hence, on 24.04.2016 the complainant lent a sum of Rs. 8 lakhs to the accused by way of cash. At that time, the accused promised that he will return that amount within 3 months along with interest at 18% p.a. But the accused not repaid that amount. After several postponements, on 16.11.2016 the accused issued cheque bearing No. 816520 drawn on Vijaya Bank, HAL III Stage, Bengaluru - 75 dated 07.11.2016, drawn in favour of 3 Crl.A.No.991/2018 the complainant for Rs.8 lakhs. When the said cheque was presented to the bank for encashment it was dishonoured for the reason 'Funds Insufficient' Then the complainant got issued demand notice and even after service of notice, the accused has not paid the amount an thereby committed offence. Hence, the complainant filed aforesaid complaint.
4. The trial court took cognizance of the offence against the accused and after recording sworn statement of the complainant issued process to the accused.
5. The accused appeared before the trial court and was released on bail. The plea of the accused was also recorded and the case of the accused was one of total denial and claimed for trial.
6. In order to substantiate the charges levelled against the accused, the complainant got himself examined as PW 1 and got marked 11 documents as Ex.P1 to P11. The statement of the accused was recorded as contemplated under Section 313 of Cr.P.C. to enable him to answer in incriminating materials. The accused, he denied all the incriminating materials and choose to lead defence evidence. Then the case was posted for defence evidence. 4
Crl.A.No.991/2018
7. In support of his defence, the accused got himself examined as DW 1 and got marked 2 documents as as Ex.D1 & D2. Then the case was posted for arguments.
8. The trial court heard the augments of both sides and after considering oral and documentary evidence came to the conclusion that the complainant has proved the guilt of the accused and consequently convicted the accused for the aforesaid offences.
9. Being aggrieved by the said order of conviction the accused / appellant has come up before this court on the following grounds.
(a) The judgment and order passed by the trial court is not sustainable in law or on facts and it is against the materials available on record. Hence, the same is liable to be set aside.
(b) The trial court has failed to notice that during the course of cross examination, the respondent has clearly admitted that he had paid Rs. 7 lakhs to the wife of the appellant under registered mortgage deed./ The trial court has misunderstood the said admission and has come to a wrong conclusion that the respondent has paid the amount to the appellant.
(c) The trial court has failed to consider the evidence of the appellant, wherein the appellant has clearly 5 Crl.A.No.991/2018 stated that the cheque in question was issued as a security to the mortgage deed obtained by his wife.
(d) In his cross examination, the respondent has clearly admitted that he is an Income Tax Assessee and not mentioned this loan in his Income Tax Returns.
This itself shows that he has not paid the alleged amount to the appellant.
(e) The respondent has not produced a single paper t show that the appellant has borrowed the alleged loan amount.
(f) The respondent has no sufficient income to pay such a huge amount to this appellant.
(g) The respondent has not produced any materials to show that he is getting rental income of Rs.1.5 lakhs per month.
(h) The trial court has failed to notice that there is variations in the ink of signature and other writings.
(j) The trial court has not considered the citations relied upon by this appellant.
(k) The trial court has come to a wrong conclusion that the appellant has not replied Ex.P6 legal notice.
(l) This appellant has clearly stated that he has paid the entire mortgaged loan to the respondent in the month of December 2016 and January 2017. With these, the appellants / accused prays for allowing the appeal, set aside the order of conviction and to acquit 6 Crl.A.No.991/2018 him for the alleged offences.
10. After filing of this appeal, the notice was issued to the respondent. He has appeared before this court through hjis counsel.
11. The trial court records have been secured and case was posted for arguments.
12. Heard arguments and perused the citations relied upon by both the parties.
13. Now the points that arise for my consideration are as follows.
1. Whether the trial court has committed an error by holding that the complainant / respondent has proved the guilt of the accused for the offence punishable under section 138 of NI Act?
2. Whether the judgment of the trial court suffers from any illegality or irregularity and as such calls for interference by this court in this appeal?
3. What order?
14. On the basis of the materials available on record, my findings on the aforesaid points are as under.
Point No.1 : In the Negative
Point No.2 : In the Negative.
Point No.3: As per final order, for the following.
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Crl.A.No.991/2018
REASONS
15. POINT NO.1 & 2: These points are taken up
together for consideration as the findings on one point has direct bearing on the other point.
16. In order to prove the charges levelled against this accused, the complainant got himself examined as PW 1 and relied on Ex.P1 to P11 documents.
17. In his oral evidence, the complainant has reiterated and reaffirmed his contention taken in the complaint. He is cross examined at length by the learned counsel for the accused. In his cross examination he has admitted that wife of this appellant borrowed mortgage loan of Rs. 7 lakhs from him. He denied the suggestion that at the time of advancing that loan he had received 3 cheques form this appellant and 2 cheques from his wife as a security. He had denied suggestion that the wife of this appellant repaid Rs.7 lakhs to the complainant. He has denied suggestion that he misused the cheque which was given as a security. He has also denied the suggestion that another 45 cheque are with him till today. He has admitted that loan amount is to be 8 Crl.A.No.991/2018 shown in the Income Tax returns. He has stated that in his balance sheet, this loan amount is shown. He has also stated that he is not doing any money lending business. Nothing is elicited in his cross examination to disbelieve is evidence. Apart from that his oral evidence is supported by the documentary evidence.
18. Ex.P1 is the cheque bearing No.816520 dated 07.11.2016 for Rs. 8 lakhs. On going through this cheque, it reveals that it was issued by the accused to the complainant for payment of Rs. 8 lakhs. In this case, the accused is admitting cheque as well as signature. Once the cheque and signature are admitted by that of the accused the court has to presume that the said cheque was issued for repayment of legally enforceable debt. This is not an absolute presumption. It is rebuttable presumption. The accused can rebut this presumption by producing cogent oral and documentary evidence. He need not to prove his defence beyond reasonable doubt. But his defence must be probable. If he is able to rebut presumption, then the burden will shifts on the complainant to prove the existence of legally enforceable debt.
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19. In this case, admittedly, the accused not replied the demand notice. In the chief examination, the accused has stated that his wife had taken Rs. 7 lakhs from the complainant by mortgaging her property which is situated at Mulabagil Taluk and subsequently, in the month of January 2017 she repaid that amount. Relating to that transaction this complainant had taken 3 cheques from him and 2 cheques from his wife. After repayment of mortgage amount, the complainant not executed redemption deed. He has not returned 5 cheques. By misusing that cheque he filed this false case. This is the contention of the accused. Now he has to prove this defence. But he has not placed any materials before the court to show that he repaid Rs.7 lakhs to the complainant. He has admitted his address mentioned in the cause title. On the other hand, the complainant has also produced Ex.P4 to P6 documents to show that demand notice is served to the accused. Even then the accused not replied the demand notice. Hence, adverse inference is to be taken against him u/s. 114 of Indian Evidence Act. Absolutely there is no materials on record to show that at the time of giving mortgage loan this 10 Crl.A.No.991/2018 cheque was issued as a security. The accused has not examined his wife. He has not placed any materials relating to repayment. According to him in the month of January 2017 he repaid that amount. He could have repaid the amount through cheque or bank transaction, instead of cash. But he has not done so. From Ex.D1 and D2 it is not possible to say that this accused drawn Rs.7 lakhs from the bank and paid cash to the complainant. |In his cross examination, why he has admitted that he is convicted by 23rd ACMM, Bengaluru in C.C. No.5267/2013. He admits that one Jayaramegowda and Keshva Babu have also filed cheque bounce case against him. Considering this aspect in my opinion, there is no reason to disbelieve the case of the complainant.
20. Ex.P2 is the endorsement issued by the bank. As per this endorsement, Ex.P1 cheque is dishonoured for the reason 'Funds Insufficient'. Ex.P3 demand notice. Ex.P4 to P6 reveals that the demand notice is served. Ex.P7 and P8 are the Income Tax Returns. Ex.P9 is the copy of the judgment in C.C.No.5267/2013. Ex.P10 is the copy of the order sheet in C.C.No.21367/20174. Ex.P11 is the copy of 11 Crl.A.No.991/2018 the order sheet in C.C.No.24357/2017. All these documents support the case of the respondent.
21. At the time of his arguments, the learned counsel for the appellant has relied upon the following judgments.
1. (2006) 6 SUPREME COURT CASES 39
2. (2015) 1 SUPREME COURT CASES 99
3. (2014) 2 SUPREME COURT CASES 236
4. 2016 (1) AKR 211
5. 2020 (3) KCCR 2373 In the judgment reported in (2006) 6 SUPREME COURT CASES 39 (M.S. NARAYANA MENON ALIAS MANI VS. STATE OF KERALA AND ANOTHER), the Hon'ble Supreme Court has held as under.
"Defence of accused that he issued cheque in question by way of security and not towards any amount due to the complainant in share transactions - Held on facts, the said defence was acceptable as probable".
22. In the judgment reported in (2015) 1 SUPREME COURT CASES 99 (K.SUBRAMANI VS. K. DAMODARA NAIDU), the Hon'ble Supreme Court has held as follows.
"Legally recoverable debt not proved as complainant could not prove source of income from which alleged 12 Crl.A.No.991/2018 loan was made to appellant - accused. Presumption in favour of the hold of cheque, hence, held, stood rebutted".
23. In the judgment reported in (2014) 2 SUPREME COURT CASES 236 (JOHN K. ABRRAHAM VS. SIMON C. ABRAHAM AND ANOTHER), the Hon'ble Supreme Court has held as follows.
"Held, in order to draw presumption under S.118 r/w S. 139 , burden lies on complainant to show: (I) that he had the requi9site funds for advancing the sum of money / loan in question to accused, (ii) that the issuance of cheque by accused in support of repayment of money advanced was true, and (iii) that the accused was bound to make payment as had been agreed while issuing cheque in favour of complainant."
24. In the judgment reported in 2016 (1) AKR 211 (A.M. GOVINDEGOWDA VS. B.V. RAVI), the Hon'ble Supreme court has held as follows.
"Complainant failed to produce his pass book or any other document to show that as on relevant day, he had that much of amount so as to lend same to accused - Figure shown in cheque i.e. Rs. 95,200/- itself creates doubts in mind of court - No person would ask for loan of Rs.95,200/- - In absence of legally enforceable debt, accused liable to be acquitted."13
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25. In the judgment reported in 2020 (3) KCCR 2373 (VISHAL VS. PARAKASH KADAPPA HEGANNAWAR), the Hon'ble Supreme Court has held as follows.
"No evidence let in regarding lending of money to a huge extent - The accused acquitted".
26. On the other hand,t he learned counsel for the respondent has relied upon the following judgments.
1. AIR 2010 SUPREME COURT 1898
2. ILR 2003 KAR 4551
3. JUDGMNET IN CRIMINAL APEAL NOS. 1382 - 1383 OF 2019.
27. In the judgment reported in AIR 2010 SUPREME COURT 1898 (RANGAPPA VS. MOHAN), the Hon'ble supreme court has held as follows.
"The presumption mandated by S. 139 of the Act does indeed include the existence of legally enforceable ebt or liability.
28. In the judgment reported in ILR 2003 KAR 4551 (M/S G.P.R. HOUSING PVT. LIMITED REP. BY IT CHAIRMAN AND MANAGING DIRECTOR, BENGALUR AND ANOTEHR VS. K. 14 Crl.A.No.991/2018 VENUGOPALA KRISHNA), the Hon'ble High Court has held as follows.
"It is also further held in the said decision that it is for the accused to show that there is no existing or subsisting debt or liability in respect of the cheque issued and the burden of proof of non-existence of such debt or liability is on the accused. In that view of the matter, the defence contention that there is no existing debt or liability on account of the change in the terms of contract is the matter or fact and evidence."
29. In the judgment of CRIMINAL APPEAL NO.1382-1383 of 2019 (M/S WOMB LABORATORIES PVT. TD. VS. VIJAY AHUJA AND ANOTHER), the Hon'ble supreme Court has held as follows.
"In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved - that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques."15
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30. In the judgment of RANGAPPA VS MOHAN, the Hon'ble Supreme Court has clearly held that the presumption u/s. 139 of NI Act includes legally enforceable debt or liability. In this case, for the reasons stated int eh aforesaid paragraphs I have already come to the conclusion that the accused has failed to rebut the presumption available u/S. 139 of NI Act. The financial capacity of the complainant is not questioned by the accused. There is one suggestion that he is not getting rental income of Rs.1.5 lakhs. Per month. Other than this the capacity of the complainant is no where questioned. The complainant has produced his income tax returns as well as balance sheet attested by an Chartered Accountant. These two documents revels the financial capacity of the complainant. Apart from that it is not in dispute that this complainant is real estate business man. Under such circumstances, it is not possible to hold that he is not having financial capacity to pay R. 8 lakhs. On one hand, the accused is now contending that the complainant is not having financial capacity and on the other hand, in the evidence, the accused himself has admitted that the complainant had paid Rs. 7 lakhs mortgage loan. Such being 16 Crl.A.No.991/2018 the case, the contention of the accused cannot be accepted. The citations relied upon by the appellant are not helpful to his case. Hence, without much discussion, it has to be held that the complainant has proved his case.
31. I have gone through the judgment passed by the trial court. The trial court has scrutinized the oral and documentary evidence on record and has come to the conclusion that the complainant has successfully proved the allegations made in the complaint. The trial court has rightly appreciated the evidence on record and has rightly convicted the accused for the offence punishable under Section 138 of N.I. Act. Even after re-appreciation of the entire evidence on record, I do not find any illegality or irregularity committed by the trial court in convicting these appellants / accused. Therefore, the appeal sans merit and liable to be dismissed. For the aforesaid reasons, point No.1 and 2 are answered in the NEGATIVE.
32. POINT NO.3: In view of the findings on point No.1 and 2 above the following order is passed: 17
Crl.A.No.991/2018 ORDER Appeal filed by the appellant / accused under Section 374 (3)of Cr.P.C. is hereby dismissed.
The judgment dated 02.05.2018 passed by learned XV Additional Chief Metropolitan Magistrate, Bengaluru City in C.C.No.147/ 2017 is hereby confirmed. Office to send back the entire records along with copy of this judgment to the trial Court forthwith. (Dictated to the Judgment Writer, transcribed by him corrected, singed and then pronounced by me in the open Court on this the 21st day of NOVEMBER 2022).
(SHRIRAM NARAYAN HEGDE), LV Addl. City Civil & Sessions Judge, (CCH-56) Bangalore City.
18Crl.A.No.991/2018 Judgment passed and pronounced in the Open Court. The operative portion of the order reads thus.
ORDER Appeal filed by the appellant / accused under Section 374 (3) of Cr.P.C. is hereby dismissed.
The judgment dated 02.05.2018 passed by learned XV Additional Chief Metropolitan Magistrate, Bengaluru City in C.C.No.147/ 2017 is hereby confirmed.
Office to send back the entire records along with copy of this judgment to the trial Court forthwith.
LV Addl. City Civil & Sessions Judge,