Bangalore District Court
R. Mahadevappa vs M. Thirumalai on 9 August, 2016
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH-65) AT BENGALURU.
Dated this the 9th day of August 2016
-: P R E S E N T :-
Sri. MADHUSUDHAN B.,
B.Com, LL.B (Spl.),
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
CRIMINAL APPEAL No.1100/2015
BETWEEN:-
APPELLANT/ R. Mahadevappa,
S/o.Late. Revanasiddappa,
(ACCUSED - IN
Aged about 44 years,
LOWER COURT) :
R/at.No.47, 1st Floor,
1st Cross, 4th Main,
Srirampura,
Bengaluru- 560 021.
(By Sri. H.T.Narayan, Adv.)
Vs.
RESPONDENT/ M. Thirumalai,
S/o. Marimuthu,
(COMPLAINANT - IN Aged about 42 years,
LOWER COURT) : R/at.No.29, 4th Cross,
Malleshwaram,
Bengaluru-560 003.
(By Sri.S.M.Hanumanthagouda,Adv.)
JUDG MENT
Accused who is appellant herein, being aggrieved by the judgment
of conviction and order of sentence dated 29.7.2015 passed in
C.C.No.12836/2013 on the file of XL-A.C.M.M., Bengaluru, preferred
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this appeal U/s.374(3) of Cr.P.C., in which he has challenged the
legality and correctness of the impugned judgment and order of
conviction. Thus, prayed for setting aside the impugned judgment and
prayed for his acquittal of the offence punishable U/s.138 of N.I.Act.
2. Parties to this appeal shall be referred to as per their ranking
before the trial court for the purpose of convenience and for better
appreciation of their contentions.
3. Brief facts of this case may be stated as under;
Complainant and accused are known to each other for more
than 5 years. On 15.11.2012, accused approached complainant and
availed hand loan of Rs.85,000/-, since he was in the need of finance to
meet out his domestic needs. In consideration of hand loan amount,
on the same day, accused has also passed one receipt for having
received hand loan amount. Accused promised that, he would repay
hand loan amount within three months. But even after lapse of three
months, accused has not repaid hand loan amount. On 25.2.2013
complainant requested and even he demanded to repay hand loan
amount. At that time, accused issued a cheque bearing No.17468 dated
11.3.2013 for Rs.85,000/- drawn on ICICI Bank Ltd., Commissariat
Road, Bengaluru. Complainant presented said cheque for encashment
3 Crl.A.No.1100/2015
through his bank namely City Union Bank Ltd., Malleshwaram,
Bengaluru. But said cheque was returned with endorsement as
'Account Blocked'. Accused was very well aware about the fact that,
there is no any transaction in his bank account. Even then he issued
such cheque with malafide intention to cheat the complainant.
Thereafter, on 4.4.2013 complainant issued legal notice to the accused
through R.P.A.D.,to his home address as well as to his working place
address. Such notice was received by accused. However, he
intentionally avoided to receive notice sent to his residential address.
Notice issued to his residential house returned with endorsement of
Postal Authorities as Door Lock Intimation Delivered. Even after receipt
of such legal notice accused neither replied to such notice nor complied
with statutory notice by paying cheque amount of Rs.85,000/-.
Therefore, complainant filed complaint U/s.200 of Cr.P.C., alleging
commission of offence punishable U/s.138 of N.I.Act.
4. Learned Magistrate took cognizance of the offence and
recorded sworn statement of complainant. Thereafter, passed orders for
registration of one criminal case against accused in C.C.No.12836/2013
and issued summons to accused. Accused appeared before Learned
Magistrate and obtained bail. After hearing accusation against accused
was read over, which he denied, hence, claimed to be tried.
4 Crl.A.No.1100/2015
5. In order to prove the guilt of the accused, complainant
examined himself as Pw.1 and got exhibited 9 documents marked at
Ex.P.1 to P.9.
6. On completion of the evidence of the complainant's side,
statement of accused as required U/s. 313 of Cr.P.C., is recorded by
giving an opportunity to the accused for explaining incriminating
circumstances appearing in the evidence of the complainant. Accused
also led his defence evidence by examining himself as Dw.1 and got
exhibited 7 documents marked at Ex.D.1 to Ex.D.7.
7. Learned Magistrate after hearing arguments and upon
appreciation of material on record, passed judgment convicting accused
of the offence punishable U/s.138 of N.I.Act. Thus, imposed sentence of
fine of Rs.1,70,000/-, in default to serve simple imprisonment for six
months. Out of fine amount, an amount of Rs.1,60,000/- is ordered to
be paid to the complainant as compensation.
8. This judgment of conviction and order of sentence is
challenged by the accused/appellant on the following;
Main Grounds of Appeal
Impugned judgment of conviction and order of sentence is
contrary to law and facts, thus liable to be set aside. Learned
Magistrate has not at all applied his judicious mind in considering the
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evidence on record. Learned Magistrate has not at all considered the
points raised in the written arguments. Learned Magistrate failed to
scrutinize the case with proper perspective, which has resulted in
substantial failure of justice. Ingredients of Section 138 of N.I.Act are
not proved by complainant. But Learned Magistrate without proper
application of judicious mind, wrongly convicted accused/appellant.
Cheque was issued by the Bank even before 2010 and
accused/appellant has not transacted with the Bank since October
2010. Therefore, contention of complainant that, said cheque was
issued in the month of March 2013 is unbelievable. Entire case of the
complainant is based on false and concocted documents. But Learned
Magistrate has mechanically accepted evidence of complainant.
Accused/appellant has sufficiently rebutted the presumption available
U/s. 139 of N.I.Act. But court below failed to appreciate the defence,
which accused has taken. Therefore, with these among other grounds,
appellant prayed for allowing this appeal by setting aside the impugned
judgment of conviction and order of sentence and prayed for his
acquittal.
9. Notices of this appeal memo were ordered to be issued to
the respondent, who appeared through his counsel.
10. L.C.R., were called for, for reference in this appeal.
6 Crl.A.No.1100/2015
11. Heard arguments. Parties have filed written arguments.
Perused impugned judgment and evidence recorded by court below and
also points urged in appeal memo as well as written arguments.
12. On the material placed before this court, following are the
points for my consideration:
1. Whether complainant proved that, accused
committed offence punishable U/s.138 of
N.I.Act?
2. Whether in the light of evidence and material
brought before the court, Learned Magistrate
is justified in convicting accused/appellant for
the offence punishable U/s.138 of N.I.Act and
sentencing him for the said offence?
3. Whether impugned judgment and order of
sentence call for interference in this appeal?
4. What Order?
13. My findings on the aforesaid points are held as under:-
Point No.1: In Affirmative
Point No.2: In Affirmative
Point No.3: In Negative
Point No.4: As per final order below, for
the following:-
REASONS
14. POINTS NO.1 to 3 :- I have taken these points together
to avoid repeated discussions.
7 Crl.A.No.1100/2015
15. In view of the grounds urged in appeal memo, as well as
raised during course of arguments and in view of contentions raised in
written arguments submitted by appellant, I feel it necessary to re-
appreciate entire evidence on record.
16. Admittedly, case instituted by complainant is U/s.138 of
N.I.Act. In the instant case, though appellant/accused denied the
entire case of prosecution, but he has admitted that, Ex.P.1/cheque
belongs to his Bank account. Therefore, in view of Section 139 of
N.I.Act, presumption is in favour of complainant. The presumption
mandated by Section 139 of N.I.Act includes presumption that there
exists a legally enforceable debt or liability. Ofcourse said presumption
is in the nature of rebuttal presumption. Thus, it is opened to accused
to raise a probable defence, where the existence of legally enforceable
debt or liability can be disproved. To disprove the presumption or to
prove his probable defence, accused need not establish and he need
not prove his defence beyond reasonable doubt. Accused can prove his
defence on the basis of preponderance of probability. It is also well
settled principle that, to rebut presumption, accused need not enter into
witness box and he can rebut the presumption even on the evidence
led in by complainant. With these accepted principles, now I will deal
with the defence of accused, which he has taken in this case and also
case as put forth by the complainant. On going through the entire
8 Crl.A.No.1100/2015
evidence on record, I am of the opinion that, accused/appellant has
taken following defences;
1. He has not availed hand loan of Rs.85,000/-
from complainant.
2. He has not issued Cheque to the complainant.
3. One M.Raja misused some cheque leaves
signed by the accused and same is handed
over to the complainant, who used said
cheque in filing complaint.
With above defence of accused, I have gone through the oral as
well as documentary evidence. On going through the cross-examination
of Dw.1, it is clear that, accused has admitted that Ex.P.1/cheque
belongs to his account with ICICI Bank, and he has also admitted his
signature appearing on Ex.P.1. Contents of Ex.P.2 discloses that, said
cheque was returned unpaid with endorsement of the drawee bank as
Account Blocked. On the other hand, complainant has issued demand
notice as provided U/s.138 of N.I.Act, copy of which is marked at
Ex.P.4. Such notice was served on accused as is evident from contents
of Ex.P.7. It is pertinent to note that, Demand Notice was issued to his
home address as well as his office address. Though notice issued to his
home address returned unserved, but on going through the contents of
Ex.P.7 and even evidence of Dw.1, it is clear that, such notice was
served to accused on 5.4.2013 itself. Even after service of such notice,
9 Crl.A.No.1100/2015
accused neither replied to such notice nor paid amount as indicated in
the cheque. Therefore, it is legitimate to draw presumption available
U/s. 139 of N.I.Act. Thus, now burden shifts on the accused to
disprove the legal presumption as provided U/s.139 of N.I.Act. In order
to disproved the presumption, accused has taken defence that, no any
money transaction took place between him and complainant and he
never borrowed sum of Rs.85,000/- from the complainant. On the other
hand, it is specific defence of the accused that, one M. Raja, who was
his best friend, who has taken some signed cheque leaves, which were
kept by accused in the house of M.Raja and said M.Raja has given
Ex.P.1/cheque to the complainant. Thus, it is contended that, in
collusion with said M.Raja this complainant filed this complaint. In order
to substantiate this aspect or to prove this defence, except oral
testimony there is no any other evidence. If really this defence is true
then in normal circumstance accused would have sent reply notice to
the statutory notice, which complainant issued against him. No any
reasons are assigned by accused for not sending reply notice. Nothing
prevented to accused to send reply notice contending that, complainant
has misused cheque in collusion with M.Raja. No such defence or plea
raised by accused by sending reply notice. Why such reply notice was
not sent remained unexplained by the accused. Therefore, though
accused has taken defence, but it cannot be considered as probable
10 Crl.A.No.1100/2015
defence, so as to disprove the presumption available U/s.139 of N.I.Act.
Further, more even ongoing through the cross-examination of Dw.1, no
any circumstances are established that, he had sufficient balance in his
account to honour the cheque on the day on which it was presented
for encashment. On going through the contents of Ex.D.7 prima facie
discloses that, Bank account of the accused was blocked, since there
was no transaction. He has not established that, as on the date of
presentation of the cheque for encashment, he has sufficient fund in his
account for honouring said cheque. Though on perusal of the contents
of Ex.P.1, it appears that, account bearing No.ANWB/000201549292 is
joint account of accused and Smt. B.V.Pushpa, but Dw.1 in his cross-
examination has clearly admitted that, though it is joint account, but
said account can be operated even by individually and more over,
cheque/Ex.P.1 was returned not because another account holder not
subscribed signature on Ex.P.1. Therefore, even if it is held that, such
account is joint account any one of the account holder can operate said
account.
17. I have also gone through the contents of Ex.P.3 with
averments of complaint. It is clear that, the day on which accused
received an amount of Rs.85,000/-, he has executed receipt for having
received such amount of Rs.85,000/- by way of cash. So in
consideration of hand loan amount and to evidence, payment of
11 Crl.A.No.1100/2015
Rs.85,000/- by complainant to the accused, accused has executed
receipt marked at Ex.P.3. It is pertinent to note that, accused is not lay
man. He is a Diploma Holder in Cinema Projection and he has also
admitted that, he knows reading as well as writing of Kannada as well
as English. He also admitted that, he used to subscribed his signature
on any instrument or document only on going through the contents of
such documents. He never denied his signature appeared on Ex.P.3.
Thus, if this statement of Dw.1 is considered with contents of Ex.P.3, I
can safely conclude that accused subscribed his signature on Ex.P.3
only after knowing the contents of Ex.P.3. Dw.1 in his examination-in-
chief stated that, he has kept three cheques in the house of said M.Raja
giving the same to meet out school fees and other expenses. He also
stated that, said M.Raja misused signed blank cheque. He further stated
that, since M.Raja misbehavior with his wife, thus, he left his house
and at that time, said Raja M. misused signed cheques. If these were
facts, which are within his knowledge, then this defence would have
taken by accused when he received statutory demand notice. It is only
during trial accused has come with a defence that, he has not received
any hand loan amount of Rs.85,000/-. Though it is contended by
accused that, Ex.P.3 is concocted document, but mere contention of
accused that, Ex.P.3 is concocted document cannot be accepted.
Having regard to his admission that, Ex.P.1/cheque belongs to his bank
12 Crl.A.No.1100/2015
account and further fact that, he has admitted his signature appearing
on Ex.P.1, then defence, which accused has taken cannot be considered
as probable defence, so as to disprove the legal presumption available
U/s.139 of N.I.Act.
18. At cost of repetition, I am of the clear opinion that,
though account of accused was blocked, but no any documentary
evidence to substantiate that, accused had sufficient funds in his
account for encashment of cheque when it is presented for such
encashment. Under these circumstances, it is to be presumed and
inferred that, in this case account blocked amounts to nothing but
insufficient of funds in accused's account and because of that only
cheque which was drawn on ICICI Bank Limitted dishonoured due to
insufficient of funds.
19. Though Pw.1 was subjected to cross-examination in length,
but nothing has been elicited from his mouth to indicate that, contents
of Ex.P.3 are false. In view of my above discussions, and in the result,
this court has come to the conclusion that, complainant has proved all
ingredients of the offence punishable U/s.138 of N.I.Act. Therefore,
accused is guilty of the offence punishable U/s.138 of N.I.Act.
13 Crl.A.No.1100/2015
20. Coming back to the impugned judgment. I have also gone
through the impugned judgment of conviction and order of sentence
passed by Learned Magistrate. Learned Magistrate only after
considering all material fact and evidence brought on record, recorded
his findings with reasonings, Learned Magistrate only after considering
all rival contentions come to the correct conclusion that, accused has
failed to prove his defence. This court is also of the same opinion that,
accused is guilty of the offence punishable U/s.138 of N.I.Act. Thus,
Learned Magistrate has not committed any illegality in passing
impugned judgment of conviction and order of sentence. Therefore
impugned judgment of conviction and order of sentence does not
suffers from any infirmities.
21. Grounds urged in appeal memo as well as raised during
course of arguments are not sustainable in law. Impugned judgment of
conviction and order of sentence imposed by trial court is very well
sustainable in law, in which case interference of this court is not
necessitated. Thus, Learned Magistrate is justified in recording
conviction and imposing sentence. Accordingly, I answer points No.1
and 2 in affirmative and point No.3 in Negative.
22. POINT NO.4 :- In view of my findings on the above points
No.1 to 3, this appeal is devoid of merits. Thus, same is liable to be
14 Crl.A.No.1100/2015
dismissed by confirming the impugned judgment of conviction and
order of sentence. Being of that opinion, I proceed to pass the
following:
ORDER
This Criminal Appeal filed U/s. 374(3) is hereby dismissed.
Consequently, impugned judgment of conviction and order of sentence dated 29.7.2015 passed in C.C.No.12836/2013 on the file of XL-A.C.M.M., Bengaluru, is hereby confirmed.
Appellant/accused is hereby directed to appear before Learned Magistrate to deposit fine amount.
Office is hereby directed to send back L.C.R. along with certified copy of Judgment, forthwith.
(Dictated to the Judgment Writer, script typed by her and corrected, signed and then pronounced by me in the open court on this the 9th day of August, 2016.) (MADHUSUDHAN B.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.