Bangalore District Court
) M/S. Aryan Home Tec Private Limited vs ) Sri.A.Chittarajan Reddy on 28 October, 2020
IN THE COURT OF THE XIII ADDL.CITY CIVIL & SESSIONS JUDGE
Mayohall unit: Bengaluru. (CCH:22)
Dated this the 28th day of October 2020
PRESENT: - Smt. Suvarna K. Mirji, B.Com., LL.B.[Spl]
XIII Addl. City Civil and Sessions
Judge, Bengaluru.
CRIMINAL APPEAL No.25224/2018
Appellants :- 1) M/s. Aryan Home Tec Private Limited,
Office at No.617, 15th Cross,
100 feet Ring road, J.P.Nagar,
6th Phase, Bengaluru-560 078.
2) Bharath Sarakki Govinda Reddy
S/o Govinda Reddy, Aged about 42 years,
Managing Director,
M/s Aryan Home Tec Private Limited,
No.617, 15th Cross, 100 feet Ring road,
J.P.Nagar, 6th Phase, Bengaluru-560 078.
3) Smt.Rashmi W/o Bharath Sarakki Govinda
Reddy, D/o Govinda Reddy,
Aged about 35 years, No.617, 15th Cross,
100 feet Ring road, J.P.Nagar, 6th Phase,
Bengaluru-560 078.
(Rep by Sri.B & S Associates)
V/s
Respondent :- 1) Sri.A.Chittarajan Reddy,
Aged about 67 years,
R/at.No.2, 3rd Main, L.N.Reddy Colony
Basavanagar(extn), Marathahalli Post,
Bengaluru- 560 037.
(Rep by Sri. H.H.V. Advocate
2
Judgment Crl.A.No.25224/2018
:JUDGMENT:
The appellants No.1 to 3 / accused have preferred this Criminal Appeal U/S 374(3) of Cr.P.C., aggrieved by the Judgment of conviction and sentence passed by the LVIII Additional Chief Metropolitan Magistrate Bengaluru in CC No.57177/2017 on 02/11/2018 for an offence U/S 138 of Negotiable Instruments Act.
2) The appellants are the accused and respondent is the Complainant before the court below. The rank of both the parties are referred as referred before the court below.
3) The brief facts of the complaint is as under:-
The Complainant filed complaint U/S 200 of Cr.PC against the accused for an offence punishable U/s 138 of Negotiable Instruments Act alleging that the accused No.2 and 3 and the complainant are distant relatives and friends and known to each other. The accused is doing business in 3 Judgment Crl.A.No.25224/2018 the name and style of M/s "Aryan Home Tech Private Limited" which is registered company incorporated under the companies Act. The accused No.2 is Managing the day to day affairs of the company along with accused No.2/ Rashmi/Director. That due to the accused dire necessity and need for improving the business of accused had sought to hand loan Rs.10,00,000/-(Rupees Ten Lakhs only) during 2013 from the complainant on the pretext that the accused will return the said loan amount of Rs.10,00,000/- (Rupees Ten Lakhs only) with interest to the complainant. The complainant believing the accused and his assurance that he would return the same promptly, parted with Rs.10,00,000/- (Rupees Ten Lakhs only) by way of cheque of Rs.5,00,000/- dated 19/10/2013 bearing No.559156 drawn on Oriental Bank of Commerce, Bengaluru and remaining amount of Rs.5,00,000/- by way of cash to the accused. Thus in this connection, the accused became liable to pay an outstanding debt amount of Rs.10,00,000/-(Rupees Ten Lakhs only) with 4 Judgment Crl.A.No.25224/2018 interest accrued to the complainant. The complainant had been demanding and requesting the accused to pay the said existing debt. But the accused were postponing the payment on one pretext or other, for the reasons best known to the accused. Thereafter the accused No.2 being incharge of day to day affairs of the said company, as Managing Director of accused No.1 company to discharge the said debt issued two post dated cheques during the first week of October 2016 as
a) Cheque bearing No.231814 dated 03/04/2017 drawn on Bank of India, Jaya Prakash Nagar Branch, Bengaluru for Rs.5,00,000/-(Rupees Five Lakhs Only), b) Cheque bearing No.231815 dated 03/04/2017 drawn on Bank of India, Jaya Prakash Nagar Branch, Bengaluru for Rs.5,00,000/-(Rupees Five Lakhs Only) with an assurance that the said cheques will be honoured.
4) The complainant further contention that he presented the said cheques for encashment through his SB Account Maintained at Oriental Bank of Commerce, Indiranagar 5 Judgment Crl.A.No.25224/2018 Branch, New Thippasandra, Bengaluru-560075 for encashment of cheque, on the accused assurance that the said cheque would be honoured. On presentation of the said cheque, the said cheque was dishonoured as per the shara as Account Closed on 04/05/2017. That the complainant got issued legal notice on 10/05/2017 through his counsel by RPAD and Professional courier calling upon the accused to pay the said amount of Rs.10,00,000/- (Rupees Ten Lakhs only), which represented the cheque amount within statutory period from the date of receipt of the legal notice. The notice issued through RPAD to the accused was returned with shara that "Addressee left and another notice was served to the accused No.2 and 3. The complainant has issued legal notice dated 26/05/2017 through his counsel accused to alternative address. The accused neither complied with the terms of the notice nor returned the cheques amount. The accused has not repaid the legal debt of Rs.10,00,000/- (Rupees Ten Lakhs Only) to the 6 Judgment Crl.A.No.25224/2018 complainant which represents the cheques amount within statutory period. Thereby on dishonor of the said cheques issued for clearance of existing debt the accused has committed an offence punishable U/S 138 and 142 of the Negotiable Instruments Act. The complainant prays to take cognizance of the offence and initiate necessary legal proceedings in accordance with law against the accused and pass such other orders as court deems fit.
5) The order dated 28/08/2017 the Magistrate Court it is mentioned that in view of judgment reported in 2014 SCW 3462 between Indian Bank Association V/s Union of India affidavit of complainant filed in lieu of examination in chief treated as PW.1 and ExP1 to ExP7 are marked, then on the same day magistrate court taken cognizance of the offence against the accused and issued summons to the accused and the accused appeared before the Magistrate court. The Magistrate Court recorded plea of the accused No.2 & 3.
The accused denied the accusation and claimed to be tried. 7
Judgment Crl.A.No.25224/2018 The complainant examined as PW.1 was cross examined by accused side. The Magistrate court recorded statement of accused U/S 313 Cr.P.C the incriminating evidence came against the accused No.2 & 3, they denied the contents of them same and they have not led defence evidence. Then on hearing arguments the Magistrate Court pronounced the judgment on 02/11/2018 convicting accused No.2 and 3 for an offence U/S 138 of Negotiable Instruments Act and sentenced to pay fine of Rs.2,500/- each. In default to pay the fine amount the accused shall undergo simple imprisonment of 3 months. Further awarded compensation U/s 357 CRPC and accused No.2 & 3 are jointly and severally shall pay compensation of Rs.12,87,000/- to the complainant. In case of default to pay compensation, the accused No.2 and 3 shall under go simple imprisonment of a period of 1 year each. The assets of the accused No.1 company is liable for the payment of compensation in case the accused No.2 and 3 failed to make the payment of 8 Judgment Crl.A.No.25224/2018 aforesaid fine and compensation. Aggrieved by the judgment of conviction for an offence U/S 138 of Negotiable Instruments Act the appellant/accused has preferred the present Appeal on the following grounds.
6) The appellant/accused submits that the impugned judgment and sentence passed by the trail court is against law and all probabilities of the case. Hence the impugned judgment and sentence is liable to be set aside. The trail court has been misdirected by the respondent and came to the conclusion that the appellant has committed an offence under section 138 of Negotiable Instrument Act. As the fact that there was no enforceable debt and that the appellant never issued the cheque in question to the respondent for the commission of the cheque. Therefore the dishonor of the cheque does not attract any penalty under section 138 of Negotiable Instrument Act. The appellant/accused submits that the present complaint is not maintainable for the technicalities a) the alleged loan had become time barred, 9 Judgment Crl.A.No.25224/2018 when the disputed cheque was presented. b) Section 73 of companies Act prohibits the loan transaction between an individual and the company, thus Section 23 of Indian Contract Act will apply c) Alleged transactions contravene the Indian contract act Section 23. d) The defence of accused that the amount which was paid by the complainant was towards green park project and it was with respect to investment in the said project and there was no loan transaction and further after the lapse of 3 years in the month of February 2017 forcefully the cheque were taken.
7) The appellants/accused further submits that trial court has failed to consider the grounds, which were brought on record that Time Barred Debt. The alleged loan had become time barred, when the disputed cheque was presented. A) According to the complainant the alleged loan was given on 19/10/2013 and the cheque in question is Dated 03/04/2017 and the cheque was dishonoured on 03/05/2017 thus the cheque has been presented to the bank after the lapse of 10 Judgment Crl.A.No.25224/2018 three years and for this transaction the Indian Limitation Act applies. B) The Hon'ble Kerala High Court in the Judgment reported in 2001 CRL.L J 24 clearly held that, Negotiable Instruments Act, Section 138-Dishonour of cheque- cheque in question was issued in discharge of time barred debt-No valid acknowledgement of debt before expiry of three years from date of loan-Debt not legally enforceable at the time of issuance of cheque accused cannot be convicted for dishonor of cheque. C) At para No.7 in the said judgment it has been held that, explanation-For the purpose of this section-debt or other liability means a legally enforceable debt or other liability. D) Thus section 138 is attracted only if the cheque is issued for the discharge of - a legally enforceable debt or other liability. In this case, admittedly the cheque in question was issued in discharge of a time barred debt. It cannot be said that a time barred debt is a legally enforceable debt. E) The Hon'ble High Court of Karnataka in the Judgment of Crl.A No.545/20:10, has 11 Judgment Crl.A.No.25224/2018 followed the aforesaid judgment and also the Hon'ble Supreme court had accepted the judgment of the Kerala High Court. Further the Hon'ble High Court of Karnataka in the recent judgment i.e., in Crl.A No.302/2010, had also agreed the proposition of Law laid down by Kerala High court.
8) The appellant/accused further submits that alleged transaction contravene the Indian Companies Act. That Section 73 of company act prohibits the loan transaction between an individual and the company, thus section 23 of Indian contract Act will apply. On the perusal of section - 73 there is a clear prohibition on acceptance of deposit from public. Now the meaning of deposits has been, clearly defined under section 2 (31) of Companies Act 2013- deposit includes any receipt of money by way of deposit or loan or in any other form by a company, but does not include such categories of amount as may be prescribed in consultation with the Reserve Bank of India. B) Thus the 12 Judgment Crl.A.No.25224/2018 companies Act, prohibits the loan transaction between individual/public and the company. C) Now when one act declares a particular transaction is illegal, another act cannot support the transaction, the Andhra Pradesh High court in the Judgment reported in 2004 (2) DCR Page No.1 has held the aforesaid legal aspect by observing "once an act declares a particular transaction illegal-it cannot be made legal for the purpose of other act-acquittal upheld".
9) The appellant/accused further submits that on the perusal of the section 23 of Indian Contract Act, it can be clearly seen that Section 23 defines as What considerations and objects are lawful, and what not- The consideration or object of an agreement is lawful unless- It is forbidden by law, or is of such a nature that, if permitted, it would defeat the provisions of any law. B) Now what as to be seen is whether the Section 23 of Indian Contract Act will be applicable to Negotiable Instruments Act- the Hon'ble High Court of Karnataka in Crl.P.No.1387/2011 in the order 13 Judgment Crl.A.No.25224/2018 dated: 06/07/2018 has clearly laid down the precedent that Indian Contract Act is applicable to Negotiable Instruments Act as Para No.21 it has been held that "as could be seen from the rulings citied by the learned counsel for the petitioner and the provision of Section 23 of Indian Contract act, it is crystal clear that if on basis of void contract and particularly if the consideration is illegal, and consideration is for immoral or illegal purposes or which is against the public policy, then the whole transaction becomes void, the consideration paid in such contract becomes an illegal consideration and when it is said it is legal or unlawful consideration, it can be at any stretch of imagination called as legally recoverable debt". C) Thus when the alleged transaction as contented by the complainant is considered as illegal as per Section 73 of Companies Act, the said Debt or liability cannot be enforced as it will not come under the scope of Section 138 of NI Act. Explanation- For the 14 Judgment Crl.A.No.25224/2018 purposes of this Section, "debt or 3 there liability" means a legally enforceable debt or other liability.
10) The appellant/accused further submits that on the perusal of the disputed cheque, it can be seen that the accused No.2 Bharath Reddy has signed the cheque and accused No.3 is not the signatory to the cheque, just because she is director of accused No.1, she cannot be prosecuted in this case. The appellants /accused prays to allow the appeal setting side the judgment and sentence dated 02/11/2018 passed by LVII ACMM, Bengaluru in CC.No.57177/2017 and acquit the appellants/accused.
11) The respondent appeared through counsel and not filed objection to the appeal memo. The Lower Court records secured.
12) The respondent counsel and filed memo with citations. The appellant counsel not counsel argued. Perused the records.
15
Judgment Crl.A.No.25224/2018
13) The Points arise for my consideration are as under.
(1) Whether the interference of this court
in the judgment passed by the LVII
Additional Chief Metropolitan
Magistrate, Bangalore in C.C.No.
57177/2017 dated 02/11/2018 in
convicting the appellants / accused for
an offence U/S 138 of Negotiable
Instruments Act is needed?
(2) What order?
14) My findings on the above Points are as under:
Point No.1: In Negative
Point No.2: See final order for following :REASONS:
15) Point No.1:-
The complainant A.Chittaranjan Reddy is examined as PW.1 before the Magistrate Court, he has filed his affidavit in lieu of examination in chief and deposed evidence that he and accused No.2 and 3 are distant relatives 16 Judgment Crl.A.No.25224/2018 and friends and known to each other. The accused is doing business in the name and style of M/s "Aryan Home Tech Private Limited" which is registered company incorporated under the companies Act. The accused No.2 is Managing the day to day affairs of the company along with accused No.2/ Rashmi/Director. That due to the accused dire necessity and need for improving the business of accused had sought to hand loan Rs.10,00,000/-(Rupees Ten Lakhs only) during 2013 from the complainant on the pretext that the accused will return the said loan amount of Rs.10,00,000/- (Rupees Ten Lakhs only) with interest to the complainant. That he believed the accused and his assurance that he would return the same promptly, parted with Rs.10,00,000/-(Rupees Ten Lakhs only) by way of cheque of Rs.5,00,000/- dated 19/10/2013 bearing No.559156 drawn on Oriental Bank of Commerce, Bengaluru and remaining amount of Rs.5,00,000/- by way of cash to the accused. Thus in this connection, the accused became liable to pay an outstanding 17 Judgment Crl.A.No.25224/2018 debt amount of Rs.10,00,000/-(Rupees Ten Lakhs only) with interest accrued to him. He was demanding and requesting the accused to pay the said existing debt. But the accused were postponing the payment on one pretext or other. The accused No.2 being in charge of day to day affairs of the said company, as Managing Director of accused No.1 company to discharge the said debt issued two post dated cheques during the first week of October 2016 i.e., a Cheque bearing No.231814 dated 03/04/2017 drawn on Bank of India, Jaya Prakash Nagar Branch, Bengaluru for Rs.5,00,000/-(Rupees Five Lakhs Only) and another Cheque bearing No.231815 dated 03/04/2017 drawn on Bank of India, Jaya Prakash Nagar Branch, Bengaluru for Rs.5,00,000/-(Rupees Five Lakhs Only) with an assurance that the said cheques will be honoured. He presented the said cheques for encashment through his SB Account Maintained at Oriental Bank of Commerce, Indiranagar Branch, New Thippasandra, Bengaluru-560075 for 18 Judgment Crl.A.No.25224/2018 encashment of cheque, on the accused assurance that the said cheque would be honoured. On presentation of the said cheque, the said cheque was dishonoured as per the shara as Account Closed on 04/05/2017. He got issued legal notice on 10/05/2017 through his counsel by RPAD and Professional courier calling upon the accused to pay the said amount of Rs.10,00,000/- (Rupees Ten Lakhs only), which represented the cheque amount within statutory period from the date of receipt of the legal notice. The notice issued through RPAD to the accused was returned with shara that "Addressee left and another notice was served to the accused No.2 and 3. He has issued legal notice dated 26/05/2017 through his counsel to alternative address of accused. The accused neither complied with the terms of the notice nor returned the cheques amount and the accused has not repaid the legal debt of Rs.10,00,000/- thereby the accused has committed an offence punishable U/S 138 and 19 Judgment Crl.A.No.25224/2018 142 of the Negotiable Instruments Act. The PW1 prays to punish the accused as prayed in the complaint.
16) In support of oral evidence the complainant has marked documents at ExP1 to ExP17. The ExP1 is cheque bearing No.231814 dated 03/04/2017 for Rs.5,00,000/- drawn on Bank of India Jayaprakash Nagar Branch, Bangalore in the name of complainant/Chittaranjan Reddy. The ExP2 is cheque bearing No.231815 dated 03/04/2017 for Rs.5,00,000/- drawn on Bank of India Jayaprakash Nagar Branch, Bangalore in the name of complainant Chittaranjan Reddy. In both ExP1 and ExP2 the signature found at ExP1(a) and ExP2(a) is signed by the authorised signatory of Aryan Home Tec.Pvt.Ltd., The ExP3 and ExP4 are two endorsements issued by Oriental Bank of Commerce, OPEC service branch,KHB colony, Bangalore both dated 04/05/2017 addressed to complainant regarding dishonour of cheque at ExP1 and ExP2 respectively for the reason 'Account closed'. The ExP5 is notice issued by the 20 Judgment Crl.A.No.25224/2018 complainant to the accused intimating dishonour of cheque and demanding payment of amount within 15 days from the date of receipt of notice. The ExP6 is postal acknowledgement and ExP7 to ExP11 are registered envelopes returned unserved on accused No.2 and 3. The ExP12 is courier receipt and ExP13 is postal acknowledgement for having served notice on accused No.3. The ExP14 is another notice issued by the complaint to the accused on 26/05/2017 calling upon the accused to pay Rs.10,00,000/- debt amount payable to him within 15 days from the date of receipt of notice. The ExP15 is postal acknowledgement and ExP16 is sealed registered cover returned unserved. The ExP17 is acknowledgement for having served notice on accused No.1.
17) That as per the averments made in the evidence of complainant PW.1, accused No.2 and 3 are his distant relatives and friends known to each other and accused is doing business in the name and style of M/s. "Aryan Home 21 Judgment Crl.A.No.25224/2018 Tec Pvt. Ltd. The PW.1/complainant is cross examined by the accused counsel wherein the relationship narrated by the complainant that accused No.2 and 3 are his distinct relatives of the complaint is not denied. Further ExP1 and ExP2 cheques belongs to accused is also not denied by the accused. It was suggested in the cross examination of PW.1 and he deposed evidence that "It is false to suggest that the accused has not at all issued the cheques voluntarily to me. It is false to suggest that in the month of February 2017 forcibly received the cheques under coercion from the accused". Therefore ExP1 and ExP2 cheques belonging to the accused is admitted by the accused. Whereas contention of the defence of the accused is that the said cheques were forcibly taken by the complainant from the accused. If at all the said cheques were taken by the complainant under coercion, there was option for the accused to take legal action against the complainant. But they have not taken any action. Hence the say of the accused is not proper to accept. 22
Judgment Crl.A.No.25224/2018 Further it is suggested in the cross examination to PW.1 by the accused counsel and PW.1 deposed evidence that "I do not know that the accused was carrying out a project by name Green Park Project. It is false to suggest that in order to purchase an apartment in Green Park Project I have paid Rs.10 lakhs on 19/10/2013 to accused No.1 company". Further it is suggested in the cross examination of PW.1 by accused counsel and PW.1 deposed evidence that "It is false to suggest that due to my default in making the payment, the flat in Green Park Project has not been transferred to me". Therefore the defence of the accused is that they are carrying out a project by name Green Park and the complainant was intended to purchase apartment and for that purpose he has paid Rs.10,00,000/- to accused No.1 company on 19/10/2013. But the said defence taken by the accused is not proved by way of oral and documentary evidence. The complainant has submitted that accused No.2 and 3 have taken loan from him for their dire necessity and 23 Judgment Crl.A.No.25224/2018 need for improving the business of accused and the said loan amount is legally recoverable debt. Further in the cross examination it is suggested to PW.1 by the accused counsel and PW.1 deposed evidence that "It is true that within three years from 19/10/2013 I have not filed any case against the accused for the recovery of Rs.10 lakhs. It is false to suggest that I have not at all advanced any money to the accused and there is no loan transaction whatsoever between me and accused as claimed in the complaint" The accused counsel in the cross examination of PW.1 nowhere suggested that the loan had become time barred debt. Whereas the judgment of Magistrate Court discloses that the accused advanced arguments that the loan amount is time barred debt and hence the complainant has no right to claim the amount. On this aspect the Magistrate Court discussed in the judgment and relied upon the decision of Hon'ble Supreme Court in a case reported in AIR 2002 SC 985:
2002 AIR SCW 694 in a case of A.V.Murthy V/s. B.S. 24 Judgment Crl.A.No.25224/2018 Nagabasavanna and further discussed that in the said decision it is held that if the cheque has been issued regarding the time barred debt then it attracts section 138 of N.I. Act and also quoted the judgment that:-
"A cheque issued for discharge of debt which s barred by law of limitation is itself a promise within the meaning of sub section 3 of session 35 of the Contract Act. A Promise is an agreement and such promise which is covered by section 25(3) of Contract Act becomes enforceable contract provided that the same is not otherwise void under the Contract Act"
18) The Magistrate Court relying on the said decision given opinion that when the promise created by a cheque issued for discharge of time barred debt or liability is certainly amounts to legally enforceable debt.
19) In this appeal the respondent counsel while arguing upon the decision reported in (2010)11 Supreme Court 25 Judgment Crl.A.No.25224/2018 Cases 441 [Rangappa V/s. Sri Mohan] Criminal Appeal No.1020 of 2010 dated 07/05/2010 wherein it is held:-
A. Negotiable Instruments Act, 1881 - S. 139
- Presumption under scope of - Held, presumption mandated by S. 139 includes a presumption that there exists a legally enforceable debt or liability - However, such presumption is rebuttable in nature - Criminal Trial - Proof - Presumption - Generally. B. Negotiable Instruments Act, 1881 - Ss. 138 and 139 - Purpose, relative scope and functioning of, explained - rebuttable presumption under S. 139 - Standard of proof for rebutting, stated - manner in which defence can be raised by accused,outlined - reliance on prosecution materials by accused to prove defence, held, permissible - Criminal rial - Proof - Burden and Onus of proof -
Reverse onus statutory clauses - Interpretation of - Standard of proof in such cases.
C. Negotiable Instruments Act, 1881 Ss. 138 and 139 - Dishonour of cheque - Conviction 26 Judgment Crl.A.No.25224/2018 for - matters to be considered by court - Held, what courts have to consider is whether ingredients of offence enumerated ins. 138 have been met and if so, whether accused was able to rebut statutory presumption contemplated under section 139 D. Negotiable Instruments Act, 1881, S 138 - Dishonour of post dated cheque - On account of 'Stop payment' instructions sent by drawer to his bank - S. 138 if attracted - Held, S. 138 can be attracted in such a case, irrespective of insufficiency of funds in his account.
E. Negotiable Instruments Act, 1881 - Ss. 138 and 139 - Dishonour of cheque - Conviction confirmed - Appellant accused, drawer of cheque in question, neither raising a probable defence nor able to contest existence of a legally enforceable debt or liability - High Court reversing his acquittal - Sustainability - Held, complaint discloses primafacie existence of a legally enforceable debt or liability - Since appellant admitted that signature on the cheque was his, statutory presumption under s. 27
Judgment Crl.A.No.25224/2018 139 comes into play and the same was not rebutted even with regard to the materials submitted by complainant - appellant not able to prove 'lost cheque' theory - Apart from not raising a probable defence, appellant was also not able to contest the existence of a legally enforceable debt or liability - hence his conviction by High Court, held, proper.
20) That cheques ExP1 and ExP2 belongs to accused is not denied by the accused. Further defence taken by the accused that the complainant by coercion obtained cheques from him is not proved by way of documentary evidence.
Further defence of the accused that the amount which was paid by the complainant was towards Green Park Project and it was with respect to investment in the said project and there was no loan transaction, and said defence is also not proved by oral or documentary evidence. Hence the accused failed to prove the defence taken by them.
28
Judgment Crl.A.No.25224/2018 21) The accused taken defence that on 19/10/2013 the
complainant paid Rs.10,00,000/- for purchase of flat in Green Park Project. Therefore the receipt of Rs.10,00,000/- by the accused from the complainant on 19/10/2013 admitted by the accused. But as per the accused the said amount was received for purchase of Flat in Green Park Project by the complainant, whereas the complainant has submits that he has paid Rs.10,00,000/- as loan to the accused to meet their dire necessity and need for improving the business. Therefore if at all the accused have not taken any loan from the complainant, the question of issuing of ExP1 and ExP2 cheques does not arise. But ExP1 and ExP2 cheques for Rs.5,00,000/- each were given to the complainant by the accused. Further ExP1(a) and ExP2(a) signature of accused No.2 on the cheques are also not disputed by the accused. Hence the defence of the accused that the cheques were taken by coercion by the complainant is not proper to accept. The accused No.2 and 3 are running 29 Judgment Crl.A.No.25224/2018 the business in the name and style of M/s "Aryan Home Tech Private Limited" i.e., accused No.1. Further the Magistrate court in its judgment properly relied upon section 3 of Section 25 of Indian Contract Act and citation referred AIR 2002 SC 985: 2002 AIR SCW 694 (A.V.Murthy V/S B.S.Nagabasavanna) as discussed above applies to case in hand. The appellants taken several grounds in appeal memo, but inspite of maximum opportunity given, the appellants counsel not agrued in this appeal.
22) As discussed above the accused failed to prove that the cheques ExP1 and ExP2 were obtained by coercion. Hence it is clear that the accused issued ExP1 and ExP2 cheques are issued for discharge of promised loan amount to be payable. Hence the citation referred by the respondent counsel in this appeal as discussed above applies to the case in hand. That As per ExP5 notice was issued by complainant to the accused on 10/05/2017 and thereafter ExP14 notice issued by the complainant on 26/05/2017 were well within 30 Judgment Crl.A.No.25224/2018 the knowledge of the accused. But, they have not given any reply to the notice. Hence the ingredients of section 138 of Negotiable Instruments Act complied with by the complainant. Therefore the accused failed to prove the defence taken in the cross examination of PW.1 as discussed above. Hence the Magistrate Court in its judgment properly appreciated oral and documentary evidence and properly came to conclusion in convicting the accused. Hence interference of this court in the judgment passed by the Magistrate court is not needed. Hence I answer Point No.1 in Negative.
23) Point No.2:-
In view of above discussion I proceed to pass the following:
:ORDER:
The appeal filed U/s 374 (3) CRPC by the appellants No.1 to 3/accused is hereby dismissed. 31
Judgment Crl.A.No.25224/2018 It is ordered that the judgment passed by the LVII Additional Chief Metropolitan Magistrate (Mayohall Unit) Bangalore in C.C.No.57177/2017 on 02/11/2018 is hereby confirmed.
The order of suspension passed by this court U/S 389 of Cr.PC stands cancelled.
No order as to costs.
Send back original records of CC No.57177/2017 to the LVII Additional Chief Metropolitan Magistrate Mayohall Unit Bengaluru along with certified copy of Judgment of this appeal.
(Dictated to the Judgment Writer, transcribed and typed by him, then made on line correction by me, and taken print out and thereafter again corrected, signed and pronounced by me in open court on this 28 th day of October 2020).
(Smt.Suvarna K. Mirji) XIII Addl.City Civil and Sessions Judge, Mayohall Unit: Bengaluru 32 Judgment Crl.A.No.25224/2018 Judgment pronounced in open court vide separate detailed Judgment The appeal U/s 374 (3) CRPC by the appellants No.1 to 3/accused is hereby dismissed.
It is ordered that the judgment passed by the LVII Additional Chief Metropolitan Magistrate (Mayohall Unit) Bangalore in 33 Judgment Crl.A.No.25224/2018 C.C.No.57177/2017 on 02/11/2018 is hereby confirmed.
The order of suspension passed by this court U/S 389 of Cr.PC stands cancelled.
No order as to costs.
Send back original records of CC No.57177/2017 to the LVII Additional Chief Metropolitan Magistrate Mayohall Unit Bengaluru along with certified copy of Judgment of this appeal.
XIII Addl.City Civil and Sessions Judge, Mayohall Unit: Bengaluru