Bangalore District Court
Syed Shaffiq Ur Rahman vs S/O.Rizvan on 16 December, 2015
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.CHANDRASHEKHAR MARGOOR, B.Sc., LL.B.(Spl)
LXVII ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Dated this the 16th day of December, 2015
Crl. Appeal No.750/2014
APPELLANT Syed Shaffiq Ur Rahman,
ACCUSED : S/o.Rizvan,
35 years,
No.86/11, Saunders Road,
Bangalore-560 005.
(By Sri.S.Z.A.Khuresh., Advocate)
.Vs.
RESPONDENT : G.Keshava Murthy,
COMPLAINANT S/o.M.Gopal,
Aged about 40 years,
R/at.No.6, Kote Cross,
Kalasipalya,
Bangalore-560002.
(By Sri.B.S.V., Advocate)
JUDGMENT
This appeal is preferred by the appellant being aggrieved by the conviction judgment passed by learned XXI Addl. C.M.M., Bengaluru in C.C.No.20573/2013, dated:23.06.2014.
2 Crl.Appeal No.750/20142. The appellant herein was the accused and respondent herein 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 of the complainant is that, the complainant is doing the business of making pots for drinking water and other mud/clay/crockery materials and the accused is doing wholesale textile business and they were known to each other since ten years. During the month of May 2012, the accused had availed the loan of Rs.21,00,000/- from the complainant, agreeing to repay the same within three months, but he has failed to keep up his promise as agreed. In spite of the repeated demands made by the complainant to repay the loan amount hence, during August 2013, the accused had issued four cheques to the complainant bearing Nos.151112 and 51113 dated:15.09.2013 for Rs.8,00,000/- each and Cheque Nos.151116 and 151117 dated:12.09.2013 for Rs.2,50,000/- each, drawn on Corporation Bank, Frazer Town Branch, Bengaluru. The complainant has presented the said cheques through his banker State Bank of Mysore, but, they were returned as dishonored for the reason "Insufficient Funds" with bankers memo dtd:21.09.2013. Thereafter, the complainant got issued the legal notice dated:5.10.2013 calling upon the accused to pay the cheques amount within 15 days through RPAD and also 3 Crl.Appeal No.750/2014 through courier service. The accused has avoided for service of notice sent through RPAD. But, the notice sent through courier service was served on the accused. The accused either paid the cheque amount or replied to the said notice. Hence, complainant has lodged the complaint before XIII Addl. C.M.M., Bengaluru.
4. The cognizance was taken and registered as PCR No.23629/2013 and sworn statement of the complainant was recorded by the XV Addl. C.M.M., Bengaluru and registered it as C.C.No.20573/2013. The summons was issued to the accused, who in turn put his appearance through his counsel and he was enlarged on bail. The plea was recorded by the 21st Addl. C.M.M., Bengaluru as the case was transferred to the said court. The accused pleads not guilty and claims to be tried. The complainant came to be examined himself as P.W.1 and got documents at Ex.P.1 to Ex.P.13 and also got examined P.W.2. The accused was examined U/Sec.313 of Cr.P.C., he denied in toto. The accused has denied the incriminating evidence of the complainant and has not chosen to adduce any evidence on his behalf. After hearing both the sides, the learned Magistrate has convicted the accused for the offence punishable U/Sec.138 of the N.I.Act and sentenced to pay a fine of Rs.22,10,000/- in default, to undergo simple imprisonment for a period of six months and out of the said fine amount, Rs.22,00,000/- shall be paid to the complainant by way of compensation under 4 Crl.Appeal No.750/2014 Sec.357 of Cr.P.C. and balance of Rs.10,000/- shall be remitted to the State Government.
5. Being aggrieved by the orders of the trial court, the appellant has preferred this appeal on the following grounds;
1. The impugned judgment is opposed to law and materials evidence on record. The lower court has failed to appreciate the evidence on record though the complainant failed to prove the offence alleged against the accused.
2. The lower court failed to note that, there is no service of notice to the accused and no postal / courier receipts have produced for having served the notice to the accused. Moreover, Ex.P.11 is not finding place, the signature of the accused. As there is no service of notice hence, complaint itself is not maintainable. But, the lower court has wrongly observed in its judgment that, the accused has not suggested to the P.W.1 that the notice is not served on the accused and also not suggested to the complainant that, the address one shown is not the address of the accused. Still, the lower court wrongly observed that, the notice is deemed to have been served.
3. The lower court has committed serious error coming to the conclusion that, the offence under Sec.138 is committed by the accused as their exists legally enforceable debt of Rs.21,00,000/- by the accused to the complainant though, the complainant has not produced any receipt or DPN or any agreement to show the payment of 5 Crl.Appeal No.750/2014 Rs.21,00,000/- to the accused during May' 2012. The P.W.1 has stated in the cross-
examination that, the cheques were issued on the date of payment itself during 2012, which is contrary to his allegation in the complaint as he has alleged that, cheques were issued during August' 2013. The P.W.1 further admitted that, he is having amount at bank since, 2010. But, he has not shown Rs.21,00,000/- deposit in his account and also not disclosed the same to the income tax department though, P.W.1 is earning Rs.200/- to 300/- per day and getting income of Rs.50,000/- p.a. The P.W.1 has first time improved his version that, he has paid the said amount out of the sale consideration amount after the alienation of his grand mother's property, the same was given by his mother, which is an after thought. The P.W.1 admits about the execution of MOU Ex.P.13, which was confronted to him during the cross-
examination by the defendant's counsel and he has admitted the very same cheques were issued to the P.W.1 by the accused.
The said contention of the P.W.1 is also an after thought as there was no allegation in the complaint in that respect. The said MOU dtd:02.07.2011 was executed between the accused and the complainant wherein, the present cheques were finding place. The accused has paid Rs.10,00,000/- as agreed to the complainant as per the said MOU, the complainant has misused the said 4 cheques and filed this complaint. The complainant has categorically admitted that, except the present financial transaction there is no other financial transaction with the accused. The said admission of the P.W.1 is not appreciated by the lower court in proper perspective. The P.W.2 who is the 6 Crl.Appeal No.750/2014 brother of the P.W.1 has stated that, the accused has issued 3 cheques to the complainant during May' 2012, the said contradictory statement is also not appreciated by the lower court in proper perspective. The complainant has misused the said cheques after elapse of 2 years without the knowledge of the accused with malafide intention. Hence, there is no legally enforceable debt existed between the accused and the complainant.
Hence, on all these grounds, the appellant has prayed to allow the appeal by setting aside the impugned Judgment passed by the learned XXI Addl. C.M.M., Bengaluru in C.C.No.20573/2013, dated:23.06.2014.
6. The respondent put his appearance through his counsel. The lower court records were secured.
7. Heard the arguments of both the sides. I have perused the materials available on record.
8. From the above facts, the points that arise for my consideration are as under:
1. Whether the appellant has made out grounds to interfere with the lower court judgment as the notice is not served on the accused and there is no existence of legally enforceable debt by the accused to the complainant?
2. What Order?7 Crl.Appeal No.750/2014
9. My findings on the above points are as follows.
POINT No.1 - Partly in the Affirmative,
POINT No.2 - As per final order,
for the following :
REASONS
10. POINT Nos.1: The learned counsel for the
appellant has vehemently argued that, the lower court has wrongly come to the conclusion that, the notice was served on the accused though the complainant has not produced any document to show that, the notice is duly served on the accused. The lower court has not appreciated the evidence with respect to legally enforceable debt as because, there are contradictory versions in the evidence of P.W.1 and 2 about issuance of cheque and also P.W.1 has improved the version first time before the court that, he has lent the loan to the accused out of the sale consideration amount of alienation of his grand mother's property. The cheques in dispute were the same cheques were involved in MOU transaction Ex.P.13. The complainant has not submitted returns to the income tax though, he alleged to have lent Rs.21,00,000/- to the accused and if any amount more than Rs.20,000/- has to be paid through cheque. Hence, for all these grounds prayed to allow the appeal by setting aide the lower court judgment and prayed to acquit the accused.
8 Crl.Appeal No.750/201411. Per contra, the learned counsel for the respondent has argued that the lower court has rightly convicted the accused as the complainant has proved his case with preponderance of probabilities and there is a presumption under Sec.118 and 139 of N.I.Act for issuance of cheque. The service of notice to the accused is deemed to be held as served, as the accused has evaded to serve the notice through RPAD. But, it is duly served through courier and there exists legally recoverable debt as the P.W.1 and 2 have led cogent evidence. Hence, prayed to dismiss the appeal by confirming the lower court order.
12. The complainant has suppressed the issuance of present cheques in the earlier transaction of the year 2011. Wherein, the complainant and accused have entered in to financial transaction and the present 4 cheques were issued at that time as well, as per Ex.P.13 dtd:05.07.2011. The cheques bearing No.151116 and 151117 of Rs.2,50,000/- each, 151112 and 151113 of Rs.2,50,000/- in total Rs.10,00,000/- were given during 2011. The same cheques were produced by the complainant as Ex.P.1 to Ex.P.4. If at all, Ex.P.1 and Ex.P.2 bearing Nos.151112 and 151113 dtd:15.09.2013 for Rs.8,00,000/- but, the Ex.P.13 the same cheque numbers drawn for Rs.2,50,000/- each during 2011. The Ex.P.1 and Ex.P.2 are not over written, hence, it creates doubt in the minds of the court as to how the Ex.P.1 and Ex.P.2 are the same cheques of 9 Crl.Appeal No.750/2014 worth of Rs.2,50,000/- is again produced before this court drawn for Rs.8,00,000/- each, which is not explained by the complainant. The complainant has not whispered any thing about the Ex.P.13, either in the complaint or in the evidence. Though he has disclosed the fact of 2011 transactions, when the accused counsel confronted the Ex.P.13 to the complainant during cross-examination. The P.W.1 has denied that, as per MOU, he has received Rs.10,00,000/- from the accused. But, the complainant has stated in the chief-examination on 12.06.2014, that, the accused has not paid the amount as per MOU Ex.P.13 and he has given 4 cheques during May' 2011, after taking back from him and the accused has returned the same by filling the contents of Ex.P.1 to Ex.P.4. The complainant has stated in the cross-examination that, the accused has taken back the said cheques, which were mentioned in Ex.P.13, which were blank. He further stated that, he will fill the amount in the said cheques, but, the version of the complainant is totally contradictory to the version in the complaint.
13. It is further allegation of the complainant that, the accused has requested for the hand loan of Rs.21,00,000/- during May, 2012 and agreed to repay it within 3 months. Accordingly, the complainant has lent Rs.21,00,000/- to accused by way of cash and accused failed to return the amount. Hence, after repeated requests, the accused has issued Ex.P.1 to Ex.P.4 cheque 10 Crl.Appeal No.750/2014 during August' 2013. The P.W.2, who is the brother of the complainant alleged to have present at the time of said transaction, he has stated that, the accused has issued 3 cheques and he does not know as to whether, the said cheques were filled or blank. But, Ex.P.13 depicts that, Ex.P.1 to Ex.P.4 were drawn for Rs.2,50,000/- each, hence it creates doubt in the mind of the court about genuinity of transaction held between the complainant and the accused during 2012. There is a contradictory versions between the complainant P.W. 1 and his brother P.W.2 about how many cheques were issued by the accused. P.W. 1 has stated that, accused was issued four cheques, but P.W. 2 has stated that, accused has issued three cheques, hence the benefit of doubt will go to accused. Moreover, the Ex.P. 1 to Ex.P. 4 cheques were drawn for Rs.2,50,000/- each are the same cheques finding place in Ex.P. 13 , but Ex.P. 1 and Ex.P. 2 are drawn for Rs.8,00,000/- each and Ex.P. 3 and Ex.P. 4 are drawn for Rs.2,50,000/- each. Ex.P. 13 is silent as to whether the said cheques were blank in respect of dates and amount etc.,. The complainant has not explained to remove the cloud of doubt arose in the mind of the court, how the cheques finding place in Ex.P. 13 are the same cheques one produced in the present case on hand.
14. The complainant P.W.1 has categorically admitted that, he is getting income of Rs.200 to 300 per day and Rs.50,000/- p.a. income. But, he has not disclosed the said accumulation of the income to the 11 Crl.Appeal No.750/2014 income tax department. Therefore, the alleged lending of Rs.21,00,000/- to the accused is unaccountable money. Their Lordship pleased to held in 2009 Crl.L.J. 3777 (Sanjay Mishra Vs.Kaniska Kapoor @ Nikki and another) that, issuance of cheque in discharge of the legally enforceable debt amount advanced by complainant to the accused was unaccounted cash amount, it was not disclosed in the income tax return liability to repay the unaccounted cash amount cannot be said to be legally enforceable liability within the meaning of explanation to Sec.138. The dictum laid down by Their Lordship is aptly applicable to the facts on hand as because, it is the version of the complainant that, he has paid Rs.21,00,000/- to the accused by way of cash, which is not disclosed to the income tax department. According Sec.269SS of Income Tax Act, if any amount more than Rs.20,000/- has to be paid through cheque only. On that count also, the complainant has violated the provisions of Sec.269SS of Income Tax Act. On that account also the conviction order of lower court is not sustainable.
15. The complainant has not whispered either in his complaint or in the notice alleged to have sent to the accused about accumulation of huge amount of Rs.21,00,000/-, which was lent to the accused during May' 2012. First time the complainant has stated that, the said amount was accumulated out of the sale consideration amount of the alienation of his grand mother's property, 12 Crl.Appeal No.750/2014 which was given to his mother. But, the complainant's version is an after thought. The complainant has not chosen to produce either any scrap of paper or the Sale Deed to establish the said fact. Except the bald and self serving statement of the complainant, there is absolutely no iota of evidence before this court to come to the conclusion that accused is capable to pay such huge amount of Rs.21,00,000/- to the accused.
Therefore, Their lordship pleased to held in 2015 AIR SCW 64 (K.Subramani .Vs. K.Damodara Naidu) that;
"Complainant had no source of income to lend sum of Rs.14 lakhs to accused - He failed to prove that there is legally recoverable debt payable to the accused to him - Acquittal of accused was proper".
The Dictum laid down by Their Lordship is aptly applicable to the facts on hand as because the complainant has not produced any chit to show that, he is capable to pay Rs.21 lakhs to the accused during May 2012.
16. The lower court has wrongly come to the conclusion that, there exists legally recoverable debts as because there is a presumption about debt as Ex.P.1 to Ex.P.4 were issued for discharge of debt. But, Their Lordship pleased to held in AIR 2008 S.C.1325 Krishna Janardhan Bhat v. Dattatraya G. Hegde that, the presumption under Sec.139 merely raises resumption in 13 Crl.Appeal No.750/2014 favour of holder of cheque and the same has been issued for discharge of any debt or other liabilities exists of legally enforceable debt is not a matter of presumption under Sec.139 of N.I.Act. The ratio laid down by their lordship is aptly applicable to the facts on hand. No doubt, the accused has not led his evidence. But, he has elicited the material evidence during the cross-examination of the P.W.1 and 2. Their Lordship pleased to held in the above decisions stated supra i.e. in AIR 2008 SC1325 that, the accused not required to step in to witness box, he may discharge his burden on the basis of materials already brought on record, question whether, the statutory presumption rebutted or not must be determined in view of other evidence on record. Therefore, I am of the considered view that, though, the accused has not led his evidence, the complainant has failed to discharge his initial burden which was lying on him. If the complainant has discharged the said burden, then, the onus will be shifted to the accused. First of all the complainant has not proved the case with preponderance of all probabilities that, there exists legally enforceable debts of Rs.21 lakhs from the accused to the complainant. Hence, I am of the considered view that, the complainant has failed to make out the case that, there exists legally enforceable debts of Rs.21,00,000/- by the accused to the complainant. Moreover complainant has stated in his Cross examination that the accused has issued the cheques on the date when he has lent amount of Rs.21 lakhs, but the complainant 14 Crl.Appeal No.750/2014 has alleged in the complaint that, he has lent Rs.21 lakhs during May 2012, but accused has issued the cheques August 2013, therefore there is inconsistent version about the issuance of cheques by the accused. The said benefit of doubt about the issuance of cheques by the accused will also go to accused.
17. The legal notice dtd:5.10.2013 vide Ex.P.9 was sent to accused through RPAD vide Ex.P.12 but, the said RPAD cover returned to sender as not claimed. No doubt, there is a presumption that, the notice sent through RPAD, if it returned back with an endorsement as not claimed, by the postal authorities. The complainant has also alleged in the complaint that, the accused has deliberately avoiding the service of notice, which was issued through RPAD. But, the complainant has also issued notice through courier service and produced vide Ex.P.11. But, the Ex.P.11 is not finding place the signature of the accused for having served the notice on the accused. The complainant might have sent the notice through courier vide Ex.P.11. But, the complainant has not chosen to produce the acknowledgement for having served the notice to the accused. The complainant has not taken pain to call upon the records to establish the service of notice to the accused. No doubt, the accused has not specifically suggested to the complainant during the cross-examination that, the notice sent to him is not duly served on him and the address one mentioned is not correct. The lower court has rightly come 15 Crl.Appeal No.750/2014 to the conclusion that, the notice sent to the accused is duly served. As there is a contention in the complaint that, the accused is avoiding the service of notice. Their Lordship pleased to held in 2004(3) Crimes 505 Madras (S.S.Ummul Habiba, Proprietor, M/s. Alim Auto Supplies v/s. B.Rajendran) that, "return of postal cover as intimated unclaimed by itself would not amounts to constructive notice when it is not averred in complaint that, accused was evading service". The dictum laid down by their Lordship is squarely applicable to the facts on hand. Therefore, I am of the considered view that, the complainant has proved that, the notice is duly served on the accused.
18. Therefore, I am of the considered view that, the lower court has come to a wrong conclusion in convicting the accused, though, there are contradictory versions in the evidence of P.W.1 and 2 about the number of cheques issued by the accused and also the discrepancy in the evidence of the complainant when the said cheques were given by the accused either during May' 2012 or August' 2013 and also the complainant has failed to establish that, how the cheques utilized in MOU Ex.P.13 are again issued by the accused to the complainant. Hence it creates doubt about the entire version of the complainant. Hence, interference of this court warranted as there is no existence of legally enforceable debt of Rs.21,00,000/- to the accused 16 Crl.Appeal No.750/2014 by the complainant. Hence, I answer the Point No.1 accordingly.
19. POINT No.2: In view of my finding on point No.1 in the 'partly in the affirmative' and for the reasons stated above, I proceed to pass the following;
ORDER The Criminal Appeal filed by the appellant is partly allowed.
Consequently, the lower court Conviction Judgment passed in C.C.No.20573/2013 dtd:23.06.2014 by the XXI Addl. C.M.M., Bengaluru is ordered to be set aside.
Acting under Sec.255(1) of Cr.P.C. the accused is acquitted, his bail bonds stands cancelled.
Send back the records to the lower court along with the copy of this judgment.
(Dictated to the Stenographer, transcribed by her, and after corrections pronounced by me in the Open Court on this the 16th day of December, 2015) (CHANDRASHEKHAR MARGOOR) LXVII Addl.City Civil and Sessions Judge, BENGALURU.