Bangalore District Court
C A Vijayalakshmi vs Lily Marry on 10 January, 2024
KABC010235732021
IN THE COURT OF THE LXIII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-64) AT BENGALURU
Dated this the 10th day of January 2024
: PRESENT :
Sri.A.V.Patil, B.Com., LL.B.,
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
CRIMINAL APPEAL No.814/2021
APPELLANT : Smt. C.A. Vijayalakshmi
W/o Sri Adinarayanaiah,
Aged about 72 years,
R/at No.4/5, Bhagyanagar Layout,
Shankarnag Road, Gottigere,
Bengaluru South,
Bengaluru - 560 083.
(By M/s. M.T. Nanaiah & Associates,
Advocates)
-V/s-
RESPONDENT : Smt.Lily Mary
W/o Sri Josephraj,
Aged about 53 years,
R/at No.69, III floor, 17th A Cross,
4th Block, 4th Stage,
Basaveshwaranagar,
Bengaluru - 560 079.
(By Sri. P.N, Advocate)
2 Crl.Apl.No.814/2021
JUDGMENT
The appellant/accused has preferred this appeal u/s 374(3) of Cr.P.C., being aggrieved by the conviction judgment passed in CC No.29972/2017 dated 08.10.2021 by learned XXII ACMM, Bengaluru. The respondent/complainant filed complaint u/s 138 of the Negotiable Instruments Act against the accused.
2. The parties will be referred as the complainant and accused as per their rankings given in the Trial Court.
3. The gist of the complainant's case is as under:-
The accused is known to the complainant since 20 years. To meet the family necessities and to discharge the loan, the accused approached the complainant in the month of December 2016 and requested the complainant for loan of ₹30 Lakhs. On 02.01.2017, the complainant paid a sum of ₹30 Lakhs to the accused by way of cash. While availing the loan the accused promised to repay the same within 3 months from 02.01.2017. On repeated requests and demands, the accused has paid a sum of ₹ 14,45,579/- by way of cash on different dates.3 Crl.Apl.No.814/2021
On 31.05.2017 the complainant approached the accused and demanded for repayment of the balance amount of ₹15,55,241/-. At that time the accused had issued post-dated cheque bearing No.293326 dated 08.06.2017 for a sum of ₹15,55,241/- drawn on Vijaya Bank, Bilekahalli Branch, Bengaluru in favor of the complainant towards balance amount of the hand loan. The accused requested the complainant to present the said cheque for encashment after 15.08.2017. As per the instructions of the accused, the complainant presented the cheque for encashment on 16.08.2017 through her Banker i.e., Bank of India, Basaveshwaranagar Branch, Bengaluru. To the shock of the complainant, the cheque was dishonoured for the reason 'funds insufficient' and to that effect received intimation with memo dated 08.09.2017. Thereafter, on 16.10.2017 the complainant got issued legal notice to the accused calling upon him to pay the cheque amount, through RPAD as well as courier service. As the acknowledgment has not been received, the complainant approached the jurisdictional post office. On enquiry, post official issued postal track consignment. As per the said postal track consignment, the legal notice was served 4 Crl.Apl.No.814/2021 upon the accused on 21.10.2017. According to the complainant, the accused has committed an offence punishable u/s 138 of the NI Act. Accordingly, the complainant filed complaint on 20.11.2017.
5. As per the Trial Court records, in pursuance of service of summons, accused appeared and got enlarged on bail. Plea read over and explained to the accused on 09.03.2018 and he pleaded not guilty and claims to be tried.
6. In order to prove the guilt of accused, the complainant has examined herself as PW1 and got marked Ex.P1 to P5. Accused statement u/s 313 of Cr.P.C. was recorded by explaining the incriminating circumstances appearing in the evidence of complainant on 01.09.2018. Accused has denied all those circumstances.
7. After hearing both sides and considering the evidence on record both oral and documentary, the learned Trial Judge has convicted the appellant/accused and passed the conviction judgment.
8. Being aggrieved by the said judgment the accused/ appellant has questioned the legality of the judgment in this appeal on various grounds.
5 Crl.Apl.No.814/2021According to the appellant, the Trial Court has not appreciated the material elicited in the cross- examination of PW1 and reached to the wrong conclusion. The Trial Court has failed to take note of the fact of the capacity of the complainant to lend money to the tune of ₹ 30 Lakhs. The complainant and his family is not having sufficient income to pay income tax and therefore, she is not an income tax assessee. The complainant does not have any documents to show that ₹30 Lakhs was in her account and she lent the same to the accused. No witnesses were present at the time of making the alleged loan payment. The legal notice alleged to have been issued by the complainant has not been delivered to the address of the accused. Without considering all these aspects, the Trial Court has erroneously convicted the accused. Hence, he prays to set aside the conviction judgment passed by the Trial Court by allowing the appeal.
9. In pursuance of service of notice, the respondent appeared through her Counsel.
10. The entire records of CC No.29972/2017 have been called for and perused.
6 Crl.Apl.No.814/202111. The learned Counsel for the appellant has filed written arguments and submitted that through the web of criminal jurisprudence always a gold thread is seen that the respondent/ prosecution has to prove its case beyond all reasonable doubt. The respondent/prosecution has to prove its case to its hilt. Howsoever strong suspicion may be, suspicion cannot take the place of proof. Further, he has reiterated the grounds urged in the appeal memo. According to him the Trial Court has not appreciated the materials elicited in the cross-examination of PW1, the complainant has no capacity to lend such a huge amount, the legal notice is not served upon the accused and the accused has not issued the cheque in question for discharge of any loan amount. Without considering all these aspects the Trial Court has mechanically passed the judgment and convicted the accused. The ingredients of Section 138 of the NI Act are not complied with. Hence, he prays to allow the appeal by setting aside the conviction judgment passed by the Trial Court. In support of his arguments, he has placed reliance on the following citations:-
1. AIRONLINE 2023 KAR 1171(J. Jayashree Vs. K.S. Jagadish) 7 Crl.Apl.No.814/2021
2. AIRONLINE 2021 KAR 636(Shantha Kumar, Proprietor, M/s. Rohinipriya Creations, Bangalore Vs. D.B. Kumaraswamy.)
3. 2012 (1) AIR KAR R 19 (K.V. Venkatesh Vs. R. Nagaraj)
12. Per contra, the learned Counsel for the respondent argued and justified the findings recorded by the Trial Court. According to him, the Trial Court has meticulously considered all the aspects and by appreciating the material available on record has rightly convicted the accused. The case is filed in respect of commission of offences punishable u/s 138 and 142 of the NI Act. If the ingredients of Sections 138 and 142 of the NI Act are complied with, then the Court does not have any other option other than to convict the accused. In the instant case, the complainant has complied with the ingredients of Sections 138 and 142 of the NI Act. The accused not issued reply, not entered the witness-box and not explained as to how the disputed cheque went to the custody of the complainant. Taking into consideration all the aspects, the Trial Court has rightly convicted the accused. Hence, prays to dismiss the appeal.
8 Crl.Apl.No.814/202113. In view of the arguments submitted by both side the following points that arise for my consideration are:
1. Whether the learned Trial Judge has properly appreciated the oral and documentary evidence on record?
2. Whether the judgment of Trial Court calls for interference by this Court?
3. What order?
14. My answer to the above points are as under:
Point No.1: in the affirmative Point No.2: in the negative Point No.3: As per final order for the following;
REASONS
15. Point No.1:- In order to prove her case, the complainant Smt. Lily Mary examined herself as PW1 and got marked Ex.P1 to Ex.P5. Ex.P1 is the cheque, Ex.P2 is the Bank Memo, Ex.P3 is the office copy of the legal notice dated 06.10.2017, Ex.P4 is the postal track consignment and Ex.P5 is the document said to have been executed by the accused.
16. The accused neither entered the witness-box nor adduced any oral evidence on her behalf. The accused has also not got marked any documents on her behalf.
9 Crl.Apl.No.814/202117. This is all the oral and documentary evidence placed on record by the complainant and accused in support of their respective contentions.
18. Before considering the case on merits, it is necessary to note the ratio lay down by Hon'ble Apex Court reported in AIR 2010 SC 1898 (Rangappa Vs. Sri Mohan) on which the learned Counsel for complainant placed reliance. In said citation the Hon'ble Apex Court discussed about the various citations and held as under:
".........Furthermore, the very fact that the accused had failed to reply to the statutory notice under Section 138 of the Act leads to the interference that there was merit in the complainant's version. Apart from not raising a probable defence, the appellant-accused was not able to contest the existence of a legally enforceable debt or liability...............Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant............"
The above referred citation of Hon'ble Apex Court of India is decided by bench consisting of Three Judges.
10 Crl.Apl.No.814/202118. In this case accused/ has not disputed that Ex.P1/cheque belongs to her account and her signature on it. In view of the settled principle the complainant discharged initial burden. By virtue of section 118 and 139 of Negotiable Instruments Act, the complainant being the holder of the cheque is entitled to invoke presumption that Ex.P1/cheque has been issued for discharging the legally subsisting liability. In view of the principle laid down in several judgments by Hon'ble Apex Court, the burden lies on accused to lead the rebuttal evidence to disprove the fact that he has not issued Ex.P1/cheque to the complainant for discharge of debt or liability.
19. Now whether the said presumption is rebutted by the accused is to be seen. Before filling of the complaint, the complainant got issued Ex.P3/legal notice. The complainant has produced postal receipt and Professional Courier receipt at Ex.P3(a) and (b). The postal track consignment is produced at Ex.P4. As per Ex.P3, the complainant got issued legal notice to the accused to the address shown in Ex.P3. As per the postal track consignment issued by the postal authorities, the item is delivered to the addressee on 21.10.2017. The accused has seriously disputed about service of the legal notice. It is material to note 11 Crl.Apl.No.814/2021 that the complaint is filed against the accused. The address of the accused mentioned in the cause title of the complaint and legal notice is one and the same. The summons is issued to the very same address. It is important to note that the said summons was served upon the accused on the very first day. If really the accused was not resident of the said address, it was not possible to serve summons on the accused at the very same address at the first instance itself. That apart, it is necessary to note that in the appeal memo filed by the accused before this Court, the very same address is mentioned. If the accused was not resident of the said address, she would have mentioned her correct address. Mentioning of the very same address in the appeal to which the complainant sent Ex.P3/legal notice clearly indicates that the accused has taken a false contention that the no legal notice is served upon her. That apart, it is necessary to note that the complainant has placed reliance on Ex.P4/postal track consignment. The accused has disputed the said document but fails to take proper steps to disprove the said document.
20. That apart, the accused has not produced any documents to show her address. In the light of 12 Crl.Apl.No.814/2021 principle laid down by the Hon'ble Apex Court of India in a decision reported in 2007 (3) Crimes 120 (SC) (C.C. Alavi Haji V/s Palapetty Muhammed & Anr), if notice sent through RPAD by correctly addressing drawer of the cheque, mandatory requirement of issue of notice in terms of (b) of proviso to u/s 138 of N.I. Act stands complied with. The evidence on record clearly establishes that the complainant sent the notice to the accused to the correct address through RPAD. Therefore, sending legal notice to the correct address of the accused is in compliance with u/s 138(b) of N.I. Act. Admittedly accused has not issued rely or repaid the cheque amount as demanded in Ex.P3/notice. If really accused is not due to pay the amount claimed in the legal notice, he would have issued the reply notice. Hence, I do not find any substance in the arguments of learned Counsel for appellant that no legal notice served upon the accused.
21. The accused disputes the financial capacity of the complainant. In view of the verdict of the Hon'ble Apex Court, if financial capacity is to be challenged by the accused, it has to be challenged in the reply notice. As noted supra, in the instant case, the accused has not issued any reply. Even otherwise 13 Crl.Apl.No.814/2021 also in the absence of any material it cannot be held that the complainant has no financial capacity to lend the amount alleged in the complaint.
22. It is an admitted fact that Ex.P1/cheque belongs to the account of the accused and it bears her signature and the said cheque is in possession of the complainant. It is for the accused to demonstrate as to how the disputed Ex.P1/cheque travelled to the hands of the complainant. Absolutely, no whisper by the accused as to how the cheque in dispute went to the hands of the complainant. Non-whispering said fact is fatal to the case of the accused.
23. Even though PW1 is subjected to cross examination, nothing has been elicited to prove that complainant as to how the cheque travels to the hands of complainant. If really, the accused not issued the cheque to the complainant, nothing was prevented the accused to initiate legal action soon after coming to her knowledge that the disputed cheque is with the complainant. It is not the case of the accused that she has initiated the legal action against the complainant. Admittedly accused has not produced any evidence to show that she has initiated 14 Crl.Apl.No.814/2021 legal action against complainant for the alleged mis- utilization of the cheque.
24. At the same time it is necessary to note that if really the cheque was not issued to the complainant, in that case, accused would have intimated her banker for stop payment of cheque. But in the instant case nothing was produced by the accused in that regard which falsify the defence of the accused. That apart the accused has not entered the witness box.
25. Non-initiating the legal action against complainant, non-issuing reply, non-giving intimation to her banker for stop payment and non- entering the witness box are the strongest circumstances to draw adverse inference against the accused. As noted supra, it is settled law that the presumption has to be rebutted by cogent proof and not by a bare explanation which is merely plausible. On appreciation of material on record in the considered opinion of this Court, in the opinion of this Court the evidence placed on record by the accused is not sufficient to rebut presumption. Hence, it cannot be said that the accused has rebutted the presumption.
15 Crl.Apl.No.814/202126. The word 'unless contrary is proved' is discussed by the Hon'ble Apex Court in a decision reported in 2001 Crl.L.J 4647 (SC). It is observed that "the accused is under the obligation to prove his case in Trial by leading cogent evidence that there was no debt or liability to the satisfaction of the Court". 'Unless contrary is proved' means the presumption has to be rebutted by proof and not by a bare explanation which is mere plausible. The said fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that the reasonable man could act on the supposition that is exist. Therefore, unless explanation is supported by proof, the presumption created by the provisions cannot be said to be rebutted. On appreciation of evidence on record the explanation of accused is not supported by proof. Hence, I have no hesitation to say that the accused fails to rebut presumption. Hence, it cannot be said that the accused has rebutted the presumption.
27. In this case the Court has to peruse whether mandatory requirement of Section 138 & 142 of N.I.Act are complied with or not to take cognizance of complaint for commission of crime punishable u/s 16 Crl.Apl.No.814/2021 138 of N.I.Act. It should be ascertained from the date of issuance of cheque, presentation of cheque, communication of bank endorsement, issuance of legal notice for payment of cheque amount, service of notice and the date of institution of complaint. Ex.P1/cheque is dated 08.06.2017, presented the cheque for encashment and received intimation from the banker as per Ex.P2 on 08.09.2017, got issued Ex.P3/legal notice on 06.10.2017 and it was served upon the accused as per Ex.P4/postal track consignment on 21.10.2017. The complainant filed the complaint on 20.11.2017.
28. It is evident from the available material that the cheque presented for encashment within validity time, notice demanding the cheque amount and filing of complaint before the Court after service of notice are within the period specified by law. Even service of legal notice, accused has not paid the cheque amount. Hence, in the considered view of this Court, the complainant has proved that the accused has committed an offence punishable u/s 138 of N.I. Act. Having regards to the facts and circumstances of the case, I do not find any merits to set-aside the judgment passed by the Trial Court. The learned Trial Judge has properly appreciated the material 17 Crl.Apl.No.814/2021 placed on record and reached to the proper conclusion. Accordingly, I answer the above point No.1 in the affirmative.
29. Point No.2:- In view of my finding on point No.1, in the considered opinion of this Court, the Trial Court Judge has properly appreciated the oral and documentary evidence placed on record by complainant as well as accused and convicted the accused for the offence punishable u/s 138 of NI Act. The appellant/accused miserably fails to point out that the impugned finding of the Trial Court is illegal and erroneous. Therefore, this Court is of the considered opinion that there is no need to interfere with the findings of the Trial Court. Hence, I answer point No.2 in the negative.
30. Point No.3:- In view of my finding on point No.1 and 2, the appeal filed by the appellant is devoid of merits. Hence, I proceed to pass the following:
ORDER Appeal filed by the accused/ appellant u/s 374(3) of Cr.P.C. is hereby dismissed.
Judgment of conviction passed in CC No.29972/2017 dated 08.10.2021 by 18 Crl.Apl.No.814/2021 learned XXII ACMM, Bengaluru, is hereby confirmed.
Office to send the Trial Court records along with copy of this judgment.
(Dictated to Stenographer Grade-I, transcribed by him, taken print out corrected by me and then pronounced in the Open-Court on the 10th day of January 2024) (A.V.PATIL) LXIII Addl. City Civil and Sessions Judge (CCH-64), Benglauru City.