Bangalore District Court
Annapoorna vs S.P.Nandish on 5 May, 2016
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY.
(CCH-67)
DATED THIS THE 5th DAY OF May 2016.
PRESENT
SRI.VIJAYAN.A., B.A.(LAW), LL.M.
LXVI Addl.City Civil & Sessions Judge
Crl.A.No.650/2013
APPELLANT Annapoorna,
W/o Nagendra,
Aged about 35 years,
R/at No.102/22, 3rd Floor,
Flat No.7,
3rd Main Tata Silk Farm,
Basavanagudi, Bengaluru.04.
(Rept. By Sri.Premnath, Adv.)
VS.
RESPONDENT S.P.Nandish,
S/o S.V.Puttaswamaiah,
Aged about 35 years,
C/o VEnkatesh,
R/at No.63,
Balegaranahalli Neralur Post,
Near City Fashion Tailor,
Anekal, Bangalore.07.
And also Proprietor of
Sri.Ramakrishna Tours and
Travels, No.262, S.C.Road,
Near Kapali Theatre,
Gandhinagar, Bangalore.
(Rept. By Sri.BP, Adv.)
2 Crl.A.No.650/2013
JUDGMENT
Appellant has preferred this appeal under Sec.374(3) of Cr.P.C. being aggrieved by order of conviction passed in CC.No.21789/2008 dated 7.11.2013 by the learned XV ACMM, Bengaluru.
2. Brief facts of the appellant's case are that:-
The Appellant is well acquainted with the complainant/respondent who is the proprietor of Ramakrishna Tours and Travels, Gandhinagar at Bangalore and appellant induced the respondent to lend money in the month of April 2008 and the appellant had borrowed hand loan of Rs.3,00,000/-
to meet her family necessities agreeing to repay within two months but failed to pay the same. On several demands and requests appellant issued a cheque dated: 2.6.2008 for Rs.3,00,000/- towards repayment of the amount and requested the respondent to present the same during 1st week of 3 Crl.A.No.650/2013 August 2008. When the same was presented for encashment cheque came to be dishonored for the reasons insufficient funds. Inspite of issuance of legal notice appellant has not paid the cheque amount. Hence, complaint.
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.11 and closed his side of evidence. The statement of accused under Sec. 313 of Cr.P.C. was recorded and accused denied all incriminating evidence against her and examined herself as DW1 and got marked documents Ex.D1 and 2. The trial court after hearing the arguments on both sides passed the impugned judgment convicting the accused/appellant for the offence punishable under Sec.138 of N.I. Act and sentenced 4 Crl.A.No.650/2013 her to pay a fine of Rs.3,10,000/- and in default he shall undergo S.I. for a period of six months.
4. Aggrieved by order of conviction and sentence the appellant herein has approached this court for the following among other grounds:-
a) The impugned judgment suffers from arbitrariness besides being perverse as the learned trial judge has not adverted to the facts and circumstances of the case.
b) The Trial judge erred in not considering the pleadings document produced by the respondent and also his cross examination. There is no proof whatsoever to prove the contention, the qu4estion that the appellant borrowed the alleged loan amount is far from truth and baseless allegation the trial court has not considered this aspect and no reasoning are given. Thus the impugned judgment and sentence is liable to be set aside.
c) The Trial Judge ought to have applied his mind to the contrary contention of the respondent that the respondent himself had borrowed a car loan of Rs.2,54,000/- from a financial institution in the 5 Crl.A.No.650/2013 year 2007 and required to pay the EMI. The provisions of the NI Act is not applicable to this case.
d) The respondent has admitted in the cross examination that no documents is produced to substantiate the he had a capacity to pay the alleged amount of Rs.3,00,000/- in the month of February 2008 to deceased Dhanalakshmi and in the month of April 20008 to the appellant. There is no finding given by the trial court on the admission made by the respondent.
e) The respondent is the brother in law of one Chandregowda to whom the appellant has given the blank cheque and blank signed papers. The appellant had not issued the cheque dated: 7.8.2008 to the respondent at any point of time. The trial court failed to appreciate the materials the materials in its extremity. Appellant has also given complaint regarding apprehension of misuse of the blank cheque by Chandregowda.
f) The Trial Judge obnoxiously erred in appreciating the fact that respondent did not obtain documents from the appellant at the time alleged transaction at first instance. The admission made by 6 Crl.A.No.650/2013 the respondent that Ex.P2 is filled by the respondent and the ink and the handwriting is different.
g) The Trial Judge ought to have dismissed the complaint based on the admission of the respondent in his cross examination that the alleged cheque and its contents is manipulated by the respondent and the said Chandregowda.
h) The Trial Judge lost sight that the evidence of the respondent is not corroborated by examining any other witness and the same has no weight in the eye of law.
i) The Trial Judge erred in not appreciating that the appellant did not approach the complainant to borrow the alleged loan and the said legal notice is not in accordance to the provisions of the Act. The court erred in not appreciating this aspect.
Hence, learned advocate for appellant prayed this court to set aside the judgment of conviction and sentence and acquit the appellant in the interest of justice and equity.
5. Heard. Learned advocate for appellant has produced the citation in (1994)1 SCC. 7 Crl.A.No.650/2013
6. On the basis of case made out, following points arise for my determination:
1. Has the appellant prove that he has not issued cheque dated: 7.8.2008 to the respondent at any point of time ?
2. Has the appellant prove that he has given blank cheque and blank signed papers to one Chandregowda?
3. What Order?
7. My findings to the above points are:
1) In the Negative
2) In the Negative
3) As per final Order, for the following:
REASONS 8. POINT No.1 and 2: Since the points 1 and 2 are interlinked with each other they are taken up together for discussion.
The Appellant is well acquainted with the complainant/respondent who is the proprietor of Ramakrishna Tours and Travels, Gandhinagar at Bangalore and appellant induced the respondent to 8 Crl.A.No.650/2013 lend money in the month of April 2008 and the appellant had borrowed hand loan of Rs.3,00,000/- to meet her family necessities agreeing to repay within two months but failed to pay the same. On several demands and requests appellant issued a cheque dated: 2.6.2008 for Rs.3,00,000/- towards repayment of the amount and requested the respondent to present the same during 1st week of August 2008. When the same was presented for encashment cheque came to be dishonored for the reasons insufficient funds. Inspite of issuance of legal notice appellant has not paid the cheque amount.
9. The complainant has filed this case against the accused for the offence punishable under Sec.138 of NI Act. During the course of trial the complainant has examined himself as P.W.1 and got marked Ex.P.1 to P.11 and closed his side of 9 Crl.A.No.650/2013 evidence. The statement of accused under Sec. 313 of Cr.P.C. was recorded and accused denied all incriminating evidence against her and examined herself as DW1 and got marked documents Ex.D1 and 2. Court after appreciating both oral and documentary evidence adduced and produced both the parties passed an order of conviction convicting the accused and sentenced her accordingly. Being aggrieved by judgment of conviction and sentence accused preferred this appeal for setting aside judgment of court below and allowing this appeal in the interest of justice and equity.
10. DW1 in her examination in chief deposed that complainant is stranger to her and she knew about the complainant when she came to the court, complainants brother in law Chandregowda has assured to provided loan for which he had received cheque and Rs.100/- face value stamp paper of Dhanalakshmi and her sister Kanakarathna along 10 Crl.A.No.650/2013 with mortgaged document of her house Chandregowda had taken those documents in order to provide loan to her sister Kanakarathna. Even after a week he failed to provide her loan thereafter they personally had been to house of complainant and she came to know that the loan is not available in the bank, but he is ready to provide loan from one Hanumanthegowda, thereafter she failed to meet Chandregowda. When she is intended to meet Chandregowda his family members went on telling lies on one or the other pretext that the Chandregowda was out of station, he would come tomorrow or like that. Finally on 2.8.2008 she lodged complaint against Chandregowda in the Thyagarajanagar police station. Chandregowda has returned three lakhs in the cheque of Dhanalakshmi and four lakhs in the cheque of Kanakarathna totally cheques worth Rs.10,00,000/- dishonored. 11 Crl.A.No.650/2013
Chandregowda also filed case against Dhanalakshmi after her death that case abated. Case filed against Kanakarathna in the Court Hall NO.12, Chandregowda also written names of his brother in law in the cheque and got dishonored the cheque. Hence, she has not liable to pay any amount to the complainant. She prayed trial court to dismiss the complaint.
11. In her cross examination she deposed that Kanakarathna is her sister. She is having good relationship with her. Number of cases filed against her sister Kanakarathna in different courts and she also undergone imprisonment and some cases are still pending against her. She do not know that complainant has not filed any case against Dhanalakshmi and Kanakarathna. Further deposed that Ex.D1 has been written in her presence in the police station. She had replied Demand notice. 12 Crl.A.No.650/2013 Further she admitted that usually she wont sign any blank paper or stamp paper or instrument. She also clearly admitted that no bank will provide loan on blank cheque. She denied several suggestions put by learned counsel for the complainant.
12. In this case though accused has taken different defenses to rebut and disprove the case of the complainant the presumption available to the complainant undisturbed by cross examination of complainant as well as production of document or adducing of evidence by the accused. Under these circumstances appellant miserably failed to prove the above points and the case of the complainant standing not shattered in this appeal also. Hence, there is no reasonable ground to interfere with the judgment of conviction and sentence passed by learned Trial Judge.
13 Crl.A.No.650/2013
13 This Court relied on case law reported in 2013(2) Kar.L.J. 569 High Court of Karnataka, Circuit Bench at Gulbarga in Smt.Peeranbi V/s Hajimalang wherein it is held that:
" NEGOTIABLE INSTURMENTS ACT, 1881, Sections 138 and 139 - Most dangerous provision - Double edged provision - Traders and citizens to be very careful - In dealing with cheque - Trial Court committed error by comparing signature of accused - with that of signature on vakalath - Trial Court acquitted accused - These proceedings were not in nature of a suit for recovery of money
- Limited scope - Whether there was dishonor of cheque - Held, the aspect of dishonor of cheque established thus the accused is sentenced to pay a fine of Rs.3,50,000/- only thus appeal is allowed."
And a decision reported in 2013(3) Kar.L.J. 347 High Court of Karnataka at Bangalore in M.D.Ramakrishnaiah V/s V.Javaregowda wherein it is held:
14 Crl.A.No.650/2013
" NEGOTIABLE INSTRUMENTS ACT, 1881 , Section 138 - Giving blank signed cheques - To any third person - Is very dangerous - You may be behind the bars - Filling the blanks by other person is no defence - Trial Court rejected the application
- Held, if signature is admitted on the cheque there is no need to get opinion of expert in respect other contents of cheque."
14. Hence, in view of above said facts and circumstances of the case and case laws it is clear that the trial court rightly convicted the accused for the alleged offence , this court find no reasonable grounds to interfere in to the orders of conviction and sentence passed by trial court. Accordingly, this court hold Point No.1 and 2 in the Negative.
15. POINT No:3 In view of my finding to the point No.1 and 2 and for reasons discussed above, I proceed to pass following 15 Crl.A.No.650/2013 ORDER The Criminal Appeal filed by the appellant under Sec.374(3) Cr.P.C. is hereby dismissed. Order of conviction and sentence passed by XV Addl.CMM, Bengaluru in CC.No:21789/2008 dated:
7.11.2013 is hereby confirmed.
Send LCR along with the copy of this order forthwith to the trial court.
(Dictated to the Judgment writer on Computer, corrected by me and pronounced by me in the open court on this 5th day of May 2016) (A.VIJAYAN), LXVI Addl.CC & SJ, Bangalore.