Bangalore District Court
Smt. Sangeetha C.S vs Sri. Mohan Kumar N on 7 March, 2020
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IN THE COURT OF THE LXXV ADDL.CITY CIVIL &
SESSION JUDGE, BENGALURU (CCH-76)
Dated this the 07th day of March 2020
PRESENT:
Smt. S. Nirmala Devi, B.Sc., LLB.
LXXV Addl.City Civil Judge & Session Judge
Bengaluru
Crl.A.No. 838/2019
Appellant/s: Smt. Sangeetha C.S
W/o M. Noorulla Sharief
Aged about 36 years
R/at. Chelur Village,
Gubbi taluk,
Tumkur District.
(By Sri. P.K.T.H Advocate)
V/s.
Respondent/s: Sri. Mohan Kumar N
S/o. Narayanappa
Aged about 36 years
R/at 133, 18th B Main,
7th Cross, 2nd Phase,
J.P Nagar,
Bengaluru - 560078.
(By Sri. A.C.S Advocate)
JUDGMEN T
This criminal appeal filed U/S 374 (3) (a) of Cr.P.C by the accused
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having aggrieved by the impugned judgment dated: 11.03.2019 in
CC.No. 13926/2017 passed by XVI ACMM, Bengaluru.
2. That the respondent who is the complainant filed the
complaint against the appellant for the offence punishable U/S 138 of
N.I Act. According to the complainant the accused and her husband are
known to him from several months. That the accused approached the
complainant for financial assistance of Rs.4,50,000/- in the month of
September 2016 to meet her immediate financial commitments. The
complainant agreed to provide the financial assistance of Rs.4,50,000/-
and paid the same to her by way of cash. The accused assured to refund
the said amount within 1 month but she is not refunded the same. After
persistence demands and requests made by the complainant the accused
issued cheque bearing No. 069505 dated: 14.11.2016 for a sum of
Rs.4,50,000/- drawn on IDBI Bank, Tumkur Branch, Tumkur in favour
of the complainant towards discharge of the legally liable debt and
assured that on presentation it will be honored. Accordingly, he
presented the said cheque for encashment through Karnataka Bank
Limited, Sarakki Branch on 31.01.2017 for collection. But the said
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cheque dis-honored with shara "funds insufficient" on 31.01.2017.
Further he got issued legal notice dated: 18.02.2017 through RPAD
demanding payments of the cheque amount. The notice sent by RPAD
returned unserved with shara "Address insufficient". But as per the
agreement of sale entered by the husband of accused dated: 23.06.2016
the accused is very much residing in the address given by her but she
evaded the service of notice.
3. Accused appeared through advocate and contested the case.
The trial court recorded the evidence of complainant and defence
evidence and after hearing the argument on both sides passed impugned
judgment dated: 11.03.2019. Where in the trial court by considering
the evidence both oral and documentary evidence has given finding that
the accused has borrowed loan of Rs. 4,50,000/- from the complainant
and for repayment of the said amount she got issued the cheque in
question which is dis-honored as "funds insufficient" and the notice was
sent to the correct address of the accused and therefore, the complainant
has complied all the essential ingredients of Section 138 of N.I Act and
convicted the accused and imposed sentence to pay fine of
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Rs.4,75,000/- in default to undergo simple imprisonment for 6 months.
4. Having aggrieved by the said impugned judgment the
present appeal has been filed by the appellant who was accused on the
following grounds:
1) The complainant failed to prove the existence of legally enforcible
debt.
2) The trial court failed to appreciate the real facts and that the
complainant has not produced documents to prove that he paid
Rs.4,50,000/-.
3) That the complainant has approached the court with uncleaned hands
by suppressing real facts.
4) That the statutory notice is not served to the accused and the
complainant has not proved that it is duly served.
5) The trial court failed to appreciate the defence evidence i.e., rebuttal
evidence and has come to an erroneous conclusion.
6) The complainant has not proved his financial capacity to advance
loan.
7) That the complainant has stolen the cheque of the appellant and mis-
used the same for making unlawful gain.
8) The trial court failed to consider the well established and settled
principle of law that the complainant not proved the case beyond all
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reasonable doubts.
Based on these grounds prayed to set aside the impugned judgment.
5. The respondent appeared through advocate and the trial
court record has been secured.
6. The counsel for appellant argued as per the grounds urged
in the appeal memo and referred to the relevant admissions in the
deposition of PW.1. The counsel for the respondent argued that the
legal notice was sent to the correct address of the accused and the same
is elicited in the cross-examination of DW.1 & 2 and that the trial court
has considered the facts and evidence and properly appreciated the same
and passed impugned judgment which is on the basis of well reasoned
judgment supported by decisions and prayed to dismiss the appeal.
7. On perusal of the trial court record, in view of the grounds
urged in the memorandum of appeal and argument addressed by the
counsels the following points arise for my consideration:
1. Whether the appellant proves that the respondent has
stolen the cheque in question and mis-used the same ?
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2. Whether the appellant proves that the legal demand notice
is not served ?
3. Whether the appellant proves that the impugned judgment
is erroneous, illegal and requires intervention of this court ?
4. What order ?
8. My answer to the above points are as under:-
Point No.1 to 3 In the Negative;
Point No.4 As per final order for the following:-
REAS O NS
9. Point No.1 :- On perusal of the cross-examination of PW.1
and evidence of DW.1 & 2 accused has taken defence that the
complainant has stolen the cheque which was kept in her chamber and
mis-used the same. In this regard the PW.1 is cross-examined. He
stated that he visited the office of the accused twice but denied the
suggestion that when he visited he stolen the cheque kept in her
chamber and mis-used it. In order to prove the said contention the
accused and her husband got examined as DW.1 & 2. They have
deposed that the accused kept a signed blank cheque in her chamber and
as DW.2 who is the husband of accused has scribbled on the back side
of the cheque, the manager of the bank informed that it cannot be
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encashed and therefore, it was kept in the chamber and it is stolen by
the accused.
10. PW.1 is suggested that since, legal notice is not served, the
accused was not aware about the cheque was in his custody. It is
pertinent to note that the accused appeared in the present case even after
coming to know that the present case is based on the cheque which is
claimed to have stolen, she has not taken legal action against the
complainant. More over, the said defence is not a believable as usually
the blank signed cheque will not be kept openly to have access to the 3 rd
parties. More over, the blank signed cheque will not be presented for
collection of money and it is to be filled up so has to reject the same as
dis-honored on the ground that something is scribbled on the back side
of the cheque. Therefore, normal and usual behavior of a person is to
tear of such cheques. More over, the accused has not explained why she
kept signed blank cheque and also as to why it was kept in the office,
when the manager of the bank himself informed that it cannot be
encashed. Therefore, the said cheque being stale ought to have been
torn off. Therefore, it is un-usual behavior of the accused to keep such
cheque and to blame that it is stolen. Therefore, the accused has not
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taken a probable defene and she has not proved that the complainant
has stolen the cheque in question. Hence, I answer Point No.1 in the
Negative.
11. Point No. 2 : The appellant has contended that the legal
demand notice at Ex.P.3 was not served to her. In this regard PW.1 is
cross-examined. He has admitted that the office of the accused and her
husband as well as her residence is situated at Chelur. On perusal of
Ex.C3 and C7 which is returned postal cover, the legal notice was sent
to the address Bar Line, 2nd Cross, Tumkur- 572101. The complainant
has pleaded that the said address was given in the agreement of sale
dated: 23.06.2016 and the same has been produced at Ex.N.1 which is
marked through DW.2. He has admitted that he has given address as
Bar Line, 2nd Cross, Tumkur in the said document and the same address
was given in the surety affidavit of DW.2 furnished on behalf of
accused. Further he stated that he is having Aadhar Card to the said
address. The accused nor her husband who have examined as DW.1 &
2 but they have not produced documents to show that both of them are
permanent residents of Chelur. In this regard DW.1 & 2 have been
cross-examined. They have admitted that both of them are residing
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together and their relationship is not strained. DW.1 has stated that if
any letter is sent to the address of her husband she will receive the
same. Ex.N1 is the agreement of sale entered by DW.2 i.e., husband of
the accused for purchasing a landed property in Sy.No. 119/2 situated at
Ankanasandra, Chelur, Gubbi Taluk. Where in his address is shown as
Bar Line, 2nd Cross, Tumkur. Therefore, in the absence of documentary
evidence that the accused is a permanent resident of Chelur and in view
of the admission of DW.2 who is none other than the husband of the
accused that he has given address Barline, 2nd Cross, Tumkuru, it is
evident that the complainant sent the legal notice to the correct address
of the accused. Therefore, when the notice was sent to the correct
address of the accused it can be presumed about valid services. But in
this case the postal cover has returned with an endorsement "insufficient
address". Therefore, considering the oral and documentary evidence
placed on record the complainant has proved that he sent legal notice to
the correct address of the accused. Therefore, he has complied the
essential ingredients of Section 138 of N.I Act regarding service of
notice and non compliance. Therefore, the appellant has failed to prove
that the complainant had intentionally sent the legal notice to the wrong
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address and the same is not served to her. Hence, I answer Point No.2 in
the Negative.
12. Point No. 3: In view of the given finding to Point No. 1 &
2 the appellant has failed to prove the grounds urged in the appeal
memo. The appellant has also disputed the financial capacity of the
complainant. In this regard PW.1 is cross-examined. He stated that he
is doing real estate business and getting income of Rs.50,000/- to
Rs.60,000/- P.M. The said evidence has not been denied by the accused.
Accordingly, the accused has not disputed the occupation of the
complainant. The complainant has deposed that the accused and her
husband doing real estate business which is not denied by the accused.
Therefore, the complainant has proved his financial capacity to advance
an amount of Rs. 4,50,000/-. The trial court has discussed each and
every facts of the case in detail and has given finding supported by valid
reasons and also the appropriate decisions. Therefore, the impugned
judgment is not erroneous and illegal. Hence, the intervention of this
court is not required. Hence, I answer Point No.3 in the Negative.
13. Point No. 4:- In view of the above discussion I proceed to
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pass the following:-
ORDER
Criminal appeal filed U/S 374 (3) (a) of Cr.P.C is dismissed.
Consequently, the impugned judgment dated:
11.03.2019 passed in CC No. 13926/2017 by the XVI ACMM is confirmed.
The trial court shall pay interim compensation to the complainant if deposited by the accused after expiry of the appeal period.
Return the trial court record along with copy of this judgment.
{Dictated to the Stenographer transcribed by her, corrected and then pronounced by me in open court this 07th day of March 2020} (S.NIRMALA DEVI) LXXV ADDL.CITY CIVIL & SESSION JUDGE, BENGALURU