Bangalore District Court
Lakshmi Pathi S G vs M/S Loanzen Finance Pvt Ltd on 31 January, 2024
Crl.A. 1106/2022
KABC010257202022
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU(CCH-61)
Dated this the 31st day of January, 2024
:Present:
Sri Narashimsa M.V., B.Com.,
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl. A. No. 1106/2022
APPELLANTS Lakshmipathi S G
S/o Late Ganesh,
Aged 43 years,
R/at No.11, Grouond floor,
Suvarna Nagar,
Doddabidarakallu
Nagasandra Post
Bengauru 560 073
(By Sri AMM - Advocate)
VS.
RESPONDENT M/s Loanzen Finance Pvt Ltd.,
Having its registered office at
No. 445/1, 2nd floor,
6th Cross Road,
Jayanagar 7th Block
West of Kanakapura Road
Bangalore 560 070
(By Sri RR- Advocate)
Crl.A. 1106/2022
JUDGMENT
This appeal under Sec. 374 (3) of Cr.P.C. is filed by accused in 20517/2016 on the file of XXIII ACMM, Bengaluru. Appellant/accused is aggrieved by the Judgment dated 03.03.2020, convicting him for the offence punishable under Sec. 138 of N.I.Act.
2. In a nut shall, the case of complainant is that:
(a) Complainant is a private limited company and classified as Non-Government company registered and incorporated under the Companies Act, 1956 registered with the Registrar of Companies (ROC) and engaged in the business of providing financial service for purchase of Used Commercial Vehicles to its valued customers. Accused had availed Used Commercial Vehicle Loan from the complainant to purchase a commercial vehicle for his business purpose and same was sanctioned by complainant vide Loan Account No. UCVMDWUCVL000005000433. Accused had agreed to repay the loan amount in equated monthly installments including interest accrued thereon without making any delay or default in any manner and also agreed to abide by the terms and conditions Crl.A. 1106/2022 without fail. Further stated that accused had issued a cheque vide bearing No.061169 dated 22.09.2021 for Rs.3,46,422/-
drawn on ICICI Bank, Hesaraghatta cross, Bengaluru towards part repayment of said loan amount.
(b) It is further stated that, complainant presented the above said cheque through its banker HDFC Bank Ltd, Richmond Road, Bengaluru for collection but, the said cheque was dishonored due to 'Funds insufficient' on 24.09.2021. The complainant got issued legal notice dated 28.09.2021 calling upon accused to make payment covered in the cheque along with interest within 15 days from the date of receipt of legal notice. The said legal notice was returned unserved with a postal shara as 'Left' on 29.09.2021. Inspite of service of legal notice to the accused he has not complied the demand made by complainant regarding payment. These facts constrained the complainant to file private complaint against accused for the offence punishable under Section 138 of N.I.Act.
(c) After filing of complaint, sworn statement of complainant was recorded, after hearing arguments and on considering the materials on record a criminal case was Crl.A. 1106/2022 registered by the Learned Magistrate for the offence punishable under Section 138 of N.I. Act and summons has been issued to accused for the said offence.
(d) In pursuance of process of court, Appellant/Accused appeared before Learned Magistrate through DRB advocate and got enlarged on bail. Thereafter, plea was read over to accused for the offence punishable under Section 138 of N.I.Act, accused did not plead guilty and claimed to be tried.
(e) The sworn statement of complainant was treated as examination in chief of complainant. Thereafter, case was posted for further chief of P.W.1. Complainant got marked 10 documents as Ex.P.1 to Ex.P10. Statement of accused U/sec 313 of Cr.P.C was prepared and kept in file. Accused remained absent and there was no representation of advocate for accused. Hence, 313 statement was dispensed as accused did not avail the opportunity. Hence, defense evidence was taken as nil, complainants arguments were heard and case was posted for judgment.
3. After hearing both sides, learned Magistrate vide Judgment and order of sentence dated 6.9.2022 has convicted Crl.A. 1106/2022 appellant / accused for the offence punishable u/S 138 of N I Act has imposed fine of Rs.3,51,422/-, out of fine amount, Rs.3,46,422/- was ordered to be paid to respondent / complainant and Rs.5,000/- was ordered to be confiscated to the State as prosecution expenses.
4. Being aggrieved by the judgment and order of sentence dated 6.9.2022, appellant / accused has filed this appeal. Grounds urged in this appeal are as under :
(a) The Judgment of conviction and sentence passed by the trial court without providing an opportunity for 313 statement passed by the above order is bad under law and the same is liable to be set aside.
(b) The Judgment of conviction sentence passed by trial court to pay a fine of Rs. 5,000/- is not maintainable neither in law nor on the facts of the case and the same is contrary to the evidence available on record.
(c) The Appellant availed the vehicle loan and paid some of the installments and issued the cheques for ECS purpose and without furnishing the statement of accounts regarding balance of Crl.A. 1106/2022 payment to the Appellant simply presented the cheque and manage to pass the order in the absence of the Appellant.
(d) The Appellant submit that the Appellant is a driver of commercial vehicle and he went on Gujarat carrying the material and he was not able to appear before the court for 313 statement and further the counsel on record was also held up in some other cases and due to heavy rain the counsel on record was not able to appear before the court.
(e) The trial court erred in passing judgment without providing an opportunity of leading his evidence by way of 313 statement in view of that the judgment in question is liable to be set aside.
5. Along with this appeal, appellant / accused filed IA-1 u/S 389 of Cr.P.C for suspension of sentence, vide orders dated 22.9.2022, execution of order of sentence passed in CC No. 9948/2021 was suspended subject to condition that 20% of the fine amount is to be deposited before trial court and surety is furnished before trial court.
Crl.A. 1106/2022
6. Notice of this appeal is served to respondent. Sri RR, advocate filed Vakalath for respondent. Trial court records were called for.
7. Perusal of trial court records discloses that on 17.10.2022, trial court records were sent to this court. Perusal of trial court records discloses that appellant / accused on 6.10.2022 has furnished surety before trial court. On 24.11.2022, appellant filed memo with DD of Rs.30,000/- prayed time to deposit the balance amount. As the trial court records were before this court, considering the said amount of Rs.30,000/- as the compliance of order of dated 22.9.2022, office was directed to realise the sum of Rs.30,000/-.
8. Total fine amount imposed by learned Magistrate is Rs.3,51,422/-, 20% of the said amount works out to Rs. 70,284/-. This aspect discloses that appellant / accused has not complied with the order dated 22.9.2022. For hearing arguments, this appeal was posted to 13.1.2023, 16.2.2023, 13.4.2023, 2.5.2023, 6.7.2023, 7.9.2023, 12.10.2023 and 21.10.2023.
9. On 21.10.2023, appellant filed written arguments, for hearing respondent's arguments, appeal was adjourned to Crl.A. 1106/2022 15.11.2023, respondent remained absent. Arguments of respondent was taken as nil, reserving liberty to respondent to address arguments within 2.12.2023, this appeal was posted to judgment,till date respondent has not addressed arguments nor has filed written arguments.
10. Perused the Trial Court records, appeal memo and the grounds urged in this appea, written arguments filed by appellant.
11. The points that arise for my consideration are :-
(1) Whether the impugned judgment of trial court is bad in law as 313 statement has been dispensed with by trial court?
(2) What Order?
12. My findings to the above points are as follows:
Point No. 1 : In the Negative.
Point No. 2 : As per final Order for the following:
REASONS
13. Sec. 138 of the Negotiable Instruments Act has been enacted to lend credibility to financial transactions, more particularly to negotiable instruments.
Crl.A. 1106/2022
14. The main ingredients of the offence under Sec.138 of Negotiable Instruments Act are:-
(i) Drawing up of a cheque by Accused towards payment of an amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the Bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso (b) to Section 138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
15. Apart from this, Sec. 139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".
16. Also, Sec. 118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
Crl.A. 1106/2022
(a) That every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed,negotiated or transferred for consideration."
17. POINT No.1: It is necessary to note that though in this appeal memo six grounds are urged, sum and substance of all the six grounds is that 313 statement of appellant / accused has not been recorded by trial court, according to appellant / accused trial court erred in not recording 313 statement, he could not appear before court as he was in Gujarat, when the case stood posted for recording of 313 statement. Another ground urged is that the cheque was issued for ECS purpose and without furnishing statement of account, respondent has presented the cheque for encashment.
18. Perusal of order sheet of trial court discloses that on 4.7.2022, PW-1 was further examined in chief. Ex.P1 to P10 came to be marked. Appellant / accused and his counsel were absent, however, learned Magistrate adjourned the case for cross examination of PW1 to 15.7.2022, on which date, PW1 was present, accused and counsel remained absent. Hence, cross Crl.A. 1106/2022 examination of PW1 was taken as nil, for recording 313 statement of accused / appellant case was adjourned to 30.7.2022.
19. On 30.07.2022, accused remained absent, learned counsel for accused submitted that the accused is ready to settle the matter, thus for reporting settlement, case was adjourned to 25.8.2022, on which date appellant / accused and counsel remained absent. Hence, recording of 313 statement was dispensed. It is observed by learned Magistrate that appellant / accused has not availed the opportunity given to him for recording of 313 statement, defence evidence was taken as nil and arguments of complainant was heard and case was posted for judgment to 6.9.2022.
20. It is necessary to note that for the purpose of cross examination of PW1, case was posted to 15.7.2022, judgment has been pronounced on 6.9.2022, within which period the case was posted before the learned Magistrate for three dates, except on 30.7.2022, counsel for appellant / accused has remained absent, whereas on all the three dates, appellant/ accused has remained absent. No effort has been made by appellant / Crl.A. 1106/2022 accused to recall PW1 for cross examination nor an attempt has been made to appear before trial court.
21. It appears that appellant/accused has made a calculative move and has willfully absented himself before trial court, even the order passed by this court on 6.9.2022, directing Appellant/Accused to deposit 20% of fine amount has not been complied.
22. It is necessary to note that as and when trial court records are received by this court, respondent / complainant would not be able to get NBW or FLW issued against accused, the modus operandi of appellant / accused is to see that the trial court records are called for as early as possible to stall further proceedings before trial court and ultimate intention of appellant is to drag the proceedings.
23. By urging the ground, in this appeal that the cheque was issued for ECS purpose, appellant / accused virtually admits that the cheque at Ex.P1 belongs to him and there is no denial about any of the contents of Ex.P2.
Crl.A. 1106/2022
24. Hon'ble Supreme Court of India in the case of Keya Mukherjee Vs. Magma Leasing Ltd. reported in AIR 2008 SC 1807 has explained the need of 313 Statement. In the said judgment in the absence of accused, how a 313 statement can be recorded and how even questionnaire can be given to accused to give his answers in writing is explained, in the said judgment an observation is made by Hon'ble Supreme Court to the effect that that one category of offence specifically exempted from the rigor of Section 313 (1)(b) is summons case.
25. Section 2(w) of Cr.P.C defines summons case as under:
"summons-case" means a case relating to an offence, and not being a warrant case;
26. Section 2(x) define warrant case as under:
"warrant-case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years;
27. The maximum punishment for an offence punishable u/S 138 of N I Act is upto two years only. Thus, a case u/S 138 of N I Act is a summons case. At this juncture, it is necessary to extract the proviso to Section 313 (1) which is as under
Crl.A. 1106/2022 " Provided that in a summons case where the court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b)."
28. The statement recorded u/S 313 of Cr.P.C in a case u/ S 138 of N I Act is not a substantive evidence or defence to rebut the presumption u/S 139 of N I Act, thus, the ground urged by appellant / accused to the effect that the 313 statement has not been recorded pales into insignificance. It is necessary to note that though opportunity was provided to appellant / accused to appear before court for recording of 313 statement, he has willfully remained absent, appellant / accused has never participated in the proceedings diligently, time and again Hon'ble Supreme Court of India has directed Trial courts to conduct trials and dispose, case under Negotiable Instruments Act in a short period of time.
29. Non cooperation on the part of appellant / accused to comply to adhere to the direction given by Apex Court cannot be viewed leniently. Further appellant/accused has not demonstrated as to how prejudice has been caused to him by non recording of 313 statement. Considering these aspects, this court is of the opinion that the none of he grounds urged in the appeal are tenable. Hence, I answer above point No.1 in the Negative.
Crl.A. 1106/2022
30. Point No.2: In view of my findings on point Nos.1, I proceed to pass the following:-
ORDER Appeal filed by Appellant under Sec. 374 (3) of Cr.P.C. is dismissed.
Judgment of Trial Court in CC No. 9948/2021 dated 06.09.2022 passed by the learned XI Addl. Small Causes Judge and ACMM, Bengaluru, is hereby confirmed.
Send back Trial Court records.
(Dictated to Stenographer-III, transcribed and typed by him, thereafter corrected and then pronounced by me in open court on this the 31st day of January, 2024).
(Narashimsa.M.V.) LX Addl.City Civil & Sessions Judge, Bengaluru.