Bangalore District Court
Sri.T.Puttaswamy vs Sri.G.Seenaswamy on 7 January, 2022
1 Crl.A.No.2322/2018
KABC010318812018
IN THE COURT OF THE LIX ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-60) AT BENGALURU
Dated this the 07th day of January, 2022
-: P R E S E N T :-
Sri.SADANANDA NAGAPPA NAIK B.A., L.L.B.,
LIX ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-60, BENGALURU CITY.
CRIMINAL APPEAL No.2322/2018
BETWEEN:-
APPELLANT : Sri.T.Puttaswamy
S/o Late Thimmegowda
(ACCUSED - IN Aged about 58 years
TRIAL COURT) : No.3724/23, 2nd Main Road,
Govindarajanagar
(Thimmenahalli),
Bengaluru 560 04.
(By Sri.Nagesh.V.R, Adv.)
V/s.
RESPONDENT/ : Sri.G.Seenaswamy,
S/o Late Gundappa,
(COMPLAINANT - aged about 62 years
IN TRIAL COURT) : R/at No.792, 20th Main
Jnanabharathi 2nd stage
(Nagadevapalya)
Bengaluru 560 050
(By. Sri. K.M.Ravi. Advocate)
2 Crl.A.No.2322/2018
JUDG MENT
Appellant has filed this appeal U/s.374(3) of Cr.P.C., being
aggrieved by the judgment of conviction and order of
sentence passed in C.C.No.19506/2012 dated 18.11.2016 on
the file of XXII-Addl. Chief Metropolitan Magistrate (hereinafter
referred as impugned judgment and order).
2. Parties to this appeal shall be referred as per their
ranking before the trial court for the purpose of convenience
and for better appreciation of their contentions.
3. In the memorandum of appeal, appellant
submitted that, trial court has not properly appreciated the
materials available on record. He has not at all issued the
cheque in question to the respondent and therefore the
dishonour of the cheque does not attract any penalty under
section 138 of N.I.Act. No sufficient opportunity was given to
the appellant to establish his defence. No sufficient
opportunity was given for cross-examination of complainant.
The statement of accused as required under section 313 of
Cr.P.C was not recorded. Respondent has filed the suit in
3 Crl.A.No.2322/2018
O.S.No.7656/2012 before the City Civil Court, Bengaluru
against the respondent and the respondent also filed the
written statement contending that he was due only
Rs.2,50,000/- and as per the direction of the City civil Court,
he has deposited Rs.2,50,000/- on 26.3.2013 by way of
demand draft. The respondent received the said amount and
thereafter filed the rejoinder denying the averments made in
the written statement. Since the appellant has not appeared
before the trial Court, the said suit was decreed and directed
the appellant to pay Rs.7,00,000/- and the appellant has also
paid Rs.7,00,000/- to the respondent and he produced the
valid receipts before the Court and the same also reflected in
the order sheet. The appellant also filed Review Petition
No.78/2010 before the City Civil Court which is pending for
consideration. He thought that the criminal case also closed,
but these facts suppressed before the Magistrate. The
Impugned judgment of conviction and order of sentence is
perverse. For the aforesaid reasons, appellant has prayed to
interfere into the impugned judgment and order and set aside
the same.
4 Crl.A.No.2322/2018
4. Along with memorandum of appeal, appellant
produced certified copy of impugned judgment and order of
conviction passed by the trial court in C.C.No.19506/2012,
cerified copy of the order sheet in O.S.No.7656/2012, plaint in
O.S.No.7656/2012. He has also filed I.A. under section 5 of the
Limitation Act with a prayer to condone the delay of 600 days
in preferring the appeal.
5. Respondent appeared through counsel. Heard
arguments. T.C.R. were called for reference in this appeal.
6. Now, following are the points arising for
determination:
1. Whether appellant had sufficient
cause for not preferring this appeal
within the period of limitation?
2. Whether in the light of evidence and
material brought before the court, trial
court is justified in convicting
accused/appellant for the offence
punishable U/s.138 of N.I.Act and
sentencing accused for the said
offence?
3. Whether interference of this court is
necessitated?
4. What Order?
5 Crl.A.No.2322/2018
9. It is answered for the aforesaid points as under:-
Point No.1: In the Affirmative
Point No.2: In the negative
Point No.3: In the affirmative
Point No.4: As per final order below, for
the following:-
REASONS
10. POINT NO. 1:- Perused the application filed
U/s.5 of Limitation Act, contents of affidavit filed in support of
said I.A. In the affidavit, appellant has submitted that, he was
under financial crisis apart from suffering from viral fever and
he was unable to contact his counsel to prefer the appeal
before the Court.
Learned counsel for the appellant submits that the
respondent also filed a suit in O.S.No.7656/2012 against the
appellant and in the said suit, the appellant admitted the
payment of Rs.2,50,000/- and as per the directions of the City
Civil Court he deposited the said amount before the City Civil
Court by way of demand draft and the respondent received
the said amount. Since the appellant was unable to appear
before the Court, the said suit was decreed and directed the
6 Crl.A.No.2322/2018
appellant to pay Rs.7,00,000/- to the respondent and
accordingly he paid Rs.7,00,000/- to the respondent.
Therefore, the appellant thought that the entire case including
the criminal case was closed. When he received FLW from the
Court, he came to know that the impugned judgment and
order of conviction was passed. Immediately, he contacted
the counsel and filed the present appeal. Hence there is a
delay of 600 days caused in preferring the appeal. Delay was
not intentional but due to bonafide reason.
10.1) I have perused the materials produced by the
appellant and the reasons assigned by the appellant to
condone delay of 600 days in preferring this appeal is
genuine. This court is of the opinion that to provide an
opportunity to prosecute the appeal, I.A. deserves to be
allowed. Hence, point No.1 is answered in the affirmative.
8. POINTS NO.2 & 3:- These points are taken
together to avoid repeated discussions.
8.1) Brief facts of the complaint is as follows;
7 Crl.A.No.2322/2018
Complainant and the accused were employed at the
Printers Mysore Ltd., M.G. Road, Bengaluru and in view of the
close friendship, the accused availed loan of Rs.10,50,000/-
from the complainant for the purpose of family necessities and
towards the payment of money to a site at Telecom
Employees Co-operative Housing Society Ltd., Bengaluru. The
accused agreed to return the said amount within short time
along with reasonable interest. The accused has failed to
repay the amount. On demand, the accused agreed to return
the amount and issued a cheque bearing No.200787 of State
Bank of Mysore, Vijayanagar, Bengaluru duly signed and
authorising the complainant to fill up the same with regard to
the amount and interest. The complainant after calculation of
interest informed the accused and got filled the cheque to the
tune of Rs.13,82,000/-. Later, presented the said cheque
through his banker viz., Bank of India, Jnanjyothi Nagar, Ullal
Main Road, bengaluru. But same returned unpaid vide
endorsement dated 01.07.2012 "Insufficient funds".
Thereafter complainant issued legal notice dated 14.06.2012
to the accused calling upon him to pay the cheque amount.
Despite issuance of legal notice, accused neither paid the
8 Crl.A.No.2322/2018
cheque amount nor replied the legal notice issued by the
complainant. Therefore, complainant filed the complaint
against the accused/appellant U/s.200 of Cr.P.C. for the
offence punishable U/s.138 of N.I.Act.
9. Perused entire order sheets, complaint filed
U/s.200 of Cr.P.C., for the offence punishable U/s.138 of
N.I.Act, examination in chief affidavit of the complainant, plea
of accusation, ingredients of exhibited documents Ex.P.1 to
Ex.P.10. There is no procedural defect of any nature while
conducting trial relating to private complaint registered for the
offence punishable U/s.138 of N.I.Act.
13. So far as appreciation of evidence is concerned,
Complainant Sri.G.Seenaswamy is examined as P.W.1. P.W.1
has reiterated averments of his complaint in his examination
in chief. Ex.P.1 is the xerox copy of Cheque. Ex.P.2 is the Bank
Endorsement made it clear that Cheque issued by the accused
came to be dishonoured by his Banker for funds insufficient.
Ex.P.3 is the Legal Notice, Ex.P.4 is the Postal Receipt, Ex.P.5 is
the Postal acknowledgment made it clear that notice issued by
9 Crl.A.No.2322/2018
the complainant demanding payment under bounced Cheque
amount by the accused is served on the accused. Ex.P6 is the
reply notice issued by the accused to the complainant denying
the loan transaction. Ex.P.7 is the loan agreement. Ex P8 is
the xerox copy of the passbook details , Ex P9 is the accounts
extract reveals that the complainant has sufficient amount in
his credit during January 2008 and therefore, this Ex P7 proves
that the complainant had sufficient amount to lend the
amount to the accused. With the help of the evidence of P.W.1
and contents of Ex.P.1 to Ex.P10, complainant successfully
discharged initial burden of proof casts under Section 138 of
N.I Act. Thereafter, burden shifts on the accused as per
presumptions under Section 118 and 139 of N.I Act in the form
of reverse onus on the accused to rebut presumptions.
14. Accused appeared before the Court and enlarged on
bail. He has specifically contended that no opportunity was
given to him to cross examine complainant/PW1. Statement
of accused as required under section 313 of Cr.P.C was
dispensed with. He has contended that the trial court has
observed in para 4 of its judgment that there were no
incriminating evidence appeared against the accused.
10 Crl.A.No.2322/2018
15. Learned counsel for the appellant has filed his
written arguments contending that the trial Court has not
conducted the trial as contemplated under Code of Criminal
Procedure. The trial Court has not recorded the statement of
the accused as required under section 313 of Cr.P.C. The
reasons assigned by the trial Court for not recording the
statement of the accused itself establish that there were no
incriminating evidence available against the accused and
hence the trial Court ought to have acquitted the accused
instead of convicting the accused. In this regard, he has relied
on the judgment of Our Hon'ble High Court of Karnataka
rendered in Crl.Petition No.2170/2021 and Crl. Revision
Petition No.1111/2018. The trial Court has afforded any
opportunity to adduce his defence evidence. He further
argued that in respect of the said transaction, the complainant
also filed a suit in O.S.No.7656/2012 before XIV Additional City
civil Judge, Bengaluru. The appellant appeared in the said suit
and filed the written statement admitting that he is only due
to a sum of Rs.2,50,000/- and accordingly, as per the Court
direction he remitted Rs.2,50,000/- to the Court. Later, he
remained absent and the said suit was decreed. He further
11 Crl.A.No.2322/2018
contended that he also paid Rs.7,00,000/- to the complainant
and complainant received the said amount. At this stage, he
specifically contended that upon receipt of the said amount,
the appellant thought that the criminal case was also closed.
He has got valid defence and hence he prays to allow the
appeal.
15. Before considering the point whether accused
succeeded to rebut presumptions and to establish his defence
to the extent of probabilities, it is just and necessary to
accumulate undisputed facts in this case.
16. It is not in dispute that bounced Cheque belongs to
the bank account of the accused. It is also not in dispute that,
signature appearing on the bounced Cheque is the signature
of the accused. It is also not in dispute that, Cheque presented
by the complainant came to be dishonoured by the banker of
the accused for the reason stated in the dishonour memo.
17. I have perused the order dated 21.09.2021 made in
Criminal Petition No.2170/2021 by the Hon'ble High Court of
Karnataka. In the said decision, the Hon'ble High Court of
Karnataka has given the following guidelines:
12 Crl.A.No.2322/2018
i) Only the incriminatory evidence must be picked out from
oral and documentary evidence.
ii) The questions must be framed in a simple language, as far
as possible in short sentences.
Iii) The attention of each accused must be drawn to the
evidence adverse or against him/her.
iv) Sometimes, a witness may give evidence as regards the
collective overt act of two or more accused and in that event a
single question may be framed, but each accused must be
questioned individually and their answers must be recorded
separately.
v) It is also possible that two or more witnesses may speak
identically regarding the overt act of an accused. In that
event, the substance of their evidence may be put in a single
question.
vi) The attention of the accused must be drawn to the marked
documents and material objects if they are incriminatory.
Vii) The accused must be questioned regarding various types
of mahazars or panchanamas only if they contain
incriminatory evidence.
Viii) accused need not be questioned in regard to evidence
given by the formal witnesses, for example, an engineer who
has drawn the sketch of scene of occurrence, a police
constable submitting the FIR to the Magistrate, a police
13 Crl.A.No.2322/2018
constable carrying seized articles to FSL, a Police Officer who
has only submitted the charge sheet without conducting
investigation, etc., unless anything incriminatory is found in
such evidence.
ix) If there are two or more accused, it is not necessary to
prepare as many sets of questionnaires as the number of
accused are. It is enough to prepare a single questionnaires
as the number of accused are. It is enough to prepare
questionnaire, but the question must be directed towards a
particular accused individually or two or more accused
collectively. When a question is framed pointing out collective
overt act of two or more accused, the answer of each accused
must be recorded separately one after another.
x) By virtue of amendment brought to Cr.P.C the trial Court
judges may take the assistance of the Public Prosecutors and
the defence counsel for framing the questions.
xi) In case the Public Prosecutor or the defence counsel
submits a set of questions, the trial Court judges must
scrutinize and adopt them with or without modification.
Xii) The Court should record the answer or explanation given
by the accused and should not insist upon the accused to give
answer in one word, 'false' or 'true'.
In the present case, the defence set up by the accused
is that the judgment and order of conviction passed by the
14 Crl.A.No.2322/2018
trial Court is perverse and no opportunity provided to the
accused to adduce evidence on his side and statement of
accused under section 313 of Cr.P.C was not recorded. I have
perused the order sheet maintained by the trial Court. From
the perusal of it, it is clear that the statement of accused
under section 313 of Cr.P.C has not been recorded. Even the
trial Court has not tried to set the questions to be put-forth to
the accused which are incriminating. The trial Court in its
judgment has observed that 313 statement is dispensed with
as there is no incriminating evidence appeared against the
accused and proceeded to convict the accused. When the
complainant has filed a complaint and clearly deposed that
cheque issued by the accused is bounced and accused has not
paid the cheque amount even after receipt of statutory notice,
it cannot be said that there is no incriminating evidence
against the accused. Therefore, from the materials placed on
record, it establishes that the trial court ought to have given
sufficient opportunity to the appellant to cross examine PW 1
and to adduce the evidence on his side and also ought to have
recorded the statement of accused under section 313 of
Cr.P.C. Hence, from this point of view, the judgment and order
15 Crl.A.No.2322/2018
of conviction passed by the trial Court is required to be
interfered and to direct the trial Court to provide an
opportunity to the accused to cross examine PW 1 and to
adduce his defence so also to record the statement of accused
by following the guidelines mentioned supra. Accordingly,
point No.2 is answered in the negative and point No.3 is
answered in the affirmative.
18. POINT NO.4 :- In view of findings on the above
point Nos.1 to 3, this criminal appeal is liable to be allowed by
setting aside impugned judgment of conviction and order of
sentence. Hence, following order is made:
ORDER
Invoking provisions under Section 386 of Cr.P.C., this Criminal Appeal filed U/s.374(3) of Cr.P.C. is allowed.
Consequently, impugned judgment of conviction and order of sentence dated 18.11.2016 passed in C.C.No.19506/2012 on the file of XXII Additional Chief Metropolitan Magistrate, Bengaluru is hereby set aside. Acting under Section 386(b)(i) of Cr.P.C., the matter is remanded to the trial court for trial in accordance with law afresh, in the light of the observations made in the judgment.
16 Crl.A.No.2322/2018Both parties are directed to appear before the court below on 11.02.2022 without waiting for notice.
The court below shall take the matter on 11.02.2022 and to proceed with the matter in accordance with law.
Send the copy of the Judgment along with the records to the lower court.
(Dictated to the Judgment writer, transcribed and typed by him, corrected, signed and then pronounced by me in the open court on this 07th day of January, 2022.) Sd/-07.01.2022 (Sadananda Nagappa Naik) LIX ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-60, BENGALURU CITY 17 Crl.A.No.2322/2018