Bangalore District Court
Ramesh Babu .N.C. S/O Chinnavar vs K.R.Dayananda S/O R.Revanna on 25 February, 2016
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU
(CCH-61)
Dated this the 25th day of February, 2016
:Present:
Sri B.Jayantha Kumar, B.A.,Law, LL.M.
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl. Appeal. No.854 / 2015
Appellant :- Ramesh Babu .N.C. S/o Chinnavar
Aged about 42 years
R/at No.16, Manjunatha Nilaya
II Floor, 1st Main Road, III Stage, 4th Block
Shakthiganapathinagara
Basaveshwaranagara
Bangalore -560079
Also at:
No.805, 11th Block, III Cross
2nd Stage, ITI Layout, Nagarbhavi
Bangalore-560 072.
(Rep by Sri Y.V.Aswathanarayana Reddy, Advocate)
Vs
Respondent:- K.R.Dayananda S/o R.Revanna
Aged about 38 years
r/a: Banashankari Nilaya
Near City Club, Sira Gate
Tumkur
(Rep by Sri D.Nagegowda, Advocate)
2 Crl.A.854/2015
JUDGMENT
This appeal is filed u/sec.374(3) of Cr.P.C. challenging the judgment dated 4.6.2015 passed by the XXI ACMM, Bengaluru in C.C.No.13249/2012 convicting the appellant/accused for the offence punishable u/s.138 of Negotiable Instruments Act and sentencing him to pay a fine of Rs.2,10,000/- and in default to undergo simple imprisonment for ten months.
2. The appellant is accused and respondent herein is the complainant before the lower court. Hereinafterwards, the parties are referred to as per their ranks assigned to them before the lower court.
3. The brief facts leading to this appeal are as follows:-
The complainant is working as Sales Executive in Giriyas Electronic Show-room at Gandhinagara branch at Bengaluru. Accused had approached the complainant for financial help in the month of September 2011 for purchase of property. At that 3 Crl.A.854/2015 time, the accused had borrowed hand loan of Rs.2 lakhs from the complainant and issued cheque bearing No.402544 for Rs.2 lakhs drawn on HDFC Bank Ltd., Magadi Chord Extension, Vijayanagar Club Road, Bangalore. The Complainant presented the said cheque through his banker State Bank of India, Gandhinagara Branch, Bengaluru on 9.3.2012 and the said cheque returned unpaid with an endorsement 'Account Closed".
Thereafter, the complainant got issued a legal notice to the accused on 20.03.2012 calling upon the accused to pay the cheque amount. Said notice was duly served upon the accused on 22.3.2012. But accused has not paid the amount. Hence, the complainant presented the complaint before lower court alleging the offence punishable u/s 138 of Negotiable Instruments Act.
4. After filing of the private complaint, the learned Magistrate took cognizance of the offence and issued summons to the accused, who put in appearance through his counsel and 4 Crl.A.854/2015 thereafter, the lower court recorded the plea of the accused and the accused pleaded not guilty and claimed to be tried. Hence, the trial was conducted by the lower court.
5. In the lower court, the complainant himself examined as P.W.1 and got marked Ex.P1 to 4. After conclusion of trial, statement of accused u/s 313 of Cr.P.C. was recorded. The accused denied all the incriminating circumstances appeared in the prosecution evidence. Accused has not let in defence evidence and not marked any documents.
6. On hearing the parties, learned Magistrate recorded a finding that the accused has committed an offence punishable u/s 138 of Negotiable Instruments Act and passed the sentence against the accused as aforesaid.
7. Feeling aggrieved by the impugned judgment and sentence passed, the accused preferred this appeal inter-alia contending that the impugned order passed by the lower court 5 Crl.A.854/2015 is illegal, arbitrary and contrary to the materials placed on record. The lower court ought to have given sufficient opportunity to the accused to establish his case beyond all reasonable doubt. The impugned order suffers from grave irregularity. The lower court has passed the impugned order mechanically resulting in grave injustice. The lower court has not looked into the financial capacity of the complainant while passing the order of conviction. The lower court has not looked into the aspect that the notice issued by the complainant is improper and hence, prayed for setting aside the judgment passed by the lower court.
8. After filing of this appeal, this court issued notice to the respondent, who put his appearance through his counsel. Records from lower court are secured.
9. Heard the arguments of learned counsels for appellant and respondent.
6 Crl.A.854/2015
10. In the light of the contentions taken up in the memorandum of appeal, the points that arise for my determination are as follows;
1) Whether the lower court has committed an error of law and facts in convicting the appellant/accused for the offence punishable U/Sec.138 of Negotiable Instruments Act without giving an opportunity to cross-examine PW1 and to lead defence evidence?
2) Whether the matter is required to be remanded to the lower court for fresh disposal?
3) What order?
11. My findings on the above points are as follows:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : As per final Order 7 Crl.A.854/2015 REASONS
12. Point No.1 and 2: It is the case of the complainant that he is working as Sales Executive in Giriyas Electronic Show-room at Gandhinagara branch at Bengaluru. Accused had approached him for financial help in the month of September 2011 for purchase of property. At that time, the accused borrowed hand loan of Rs.2 lakhs from him and issued cheque bearing No.402544 for Rs.2 lakhs drawn on HDFC Bank Ltd., Magadi Chord Extension, Vijayanagar Club Road, Bangalore. The Complainant presented the said cheque through his banker State Bank of India, Gandhinagara Branch, Bengaluru on 9.3.2012 and the said cheque returned unpaid with endorsement 'Account Closed". Thereafter, the complainant got issued a legal notice to the accused on 20.03.2012 calling upon the accused to pay the cheque amount. Said notice was duly served upon the accused on 22.3.2012. But accused has not paid the amount. Hence, the 8 Crl.A.854/2015 complainant presented the complaint before lower court alleging the offence punishable u/s 138 of Negotiable Instruments Act.
13. In order to prove the case, complainant himself examined as PW1 and he has produced documents marked as Ex.P.1 to P4. It is pertinent to note that earlier the lower court passed order of conviction on 25.2.2014. Said judgment was challenged before this court in Crl.A.No.467/2014. The City Fast Track Court-VI passed judgment on 21.2.2015 by allowing the appeal and remanding the matter to the lower court with a direction to hear the arguments of both sides afresh and to pass judgment in the presence of the accused. After remand, the lower court heard the arguments and again passed the judgment of conviction against the accused. Accused being aggrieved by the said judgment of conviction has challenged the judgment on the ground that no opportunity has been given to him to cross-examine PW1 and to lead his defence 9 Crl.A.854/2015 evidence. He has further challenged the judgment on the ground that the complainant had no financial capacity to pay the loan and no document has been produced by the complainant to establish his financial status and therefore, the complainant has failed to prove that the cheque in question was issued for legally recoverable debt. He has also challenged the judgment on the ground that in the legal notice issued by the complainant, complainant claimed Rs.2,04,500/-, whereas the cheque amount is Rs.2 lakhs and therefore, the notice is not proper. Learned counsel for appellant/accused in support of his arguments has relied upon the following decisions:-
1) 2008(6) Kar.L.J. 538(SC) (Krishna janardhan Bhat Vs. Dattatraya G.Hegde)
2) 2014 Cri.L.J.2304 (SC) (John.K.Abrahan Vs. Simon.C. Abraham and another)
3) 2012(3) KCCR 2057 (Veerayya Vs. G.K.Madivalar)
4) 2015 AIR SCW 64 (K.Subramani Vs. K.Damodara Naidu)
5) 2015 AIR SCW 541 (Ramdas S/o Khelu Naik Vs. Krishnand S/o Vishnu Naik)
10 Crl.A.854/2015
6) ILR 2004 KAR 433 ( K.R.Indira Vs. Dr.G.Adinarayana)
14. Learned counsel for the appellant has filed his written argument and contended that the lower court has committed an error in passing the judgment without giving an opportunity to lead defence evidence and to cross-examine PW1.
15. Let me go through the order sheet of the lower court. The complainant has adduced his evidence on 15.1.2013 and then the case was posted for cross of PW1. On 24.7.2013, accused remained absent and lower court issued NBW. On 8.8.2013, the accused appeared and got cancelled NBW. On 9.10.2013, the accused present and sought time for cross- examination and lower court rejected his prayer and cross- examination of PW1 taken as nill and posted the case for recording statement of accused U/s.313 of Cr.P.C. On 13.11.2013, the statement of accused U/s.313 of Cr.P.C. was recorded and case was posted for defence evidence. On 11 Crl.A.854/2015 24.12.2013, the accused remained absent. On 21.1.2014, the accused remained absent and his defence evidence was taken as closed and the case was posted to 20.2.2014, 21.2.2014 and finally judgment was pronounced on 25.2.2014 convicting the accused for the offence punishable U/Sec.138 Negotiable Instruments Act. Feeling aggrieved by the said judgment, the accused has challenged the said judgment in Crl.A.467/2014. In the said judgment, the matter was remanded to lower court with a direction to hear the arguments of both sides afresh and to pass the judgment in the presence of accused. After the remand, the accused filed an application U/s.311 of Cr.P.C., to recall PW1 for the purpose of cross-examination. Said application was dismissed on the ground that appellate court has remanded the matter only to hear the arguments afresh and to pass judgment. Thereafter, the lower court passed judgment of conviction on 4.6.2015. Said judgment is being challenged in this appeal. I am of the opinion that, it is true 12 Crl.A.854/2015 that the accused had not availed the opportunity of cross- examining PW1 and he has not moved any application before the lower court when the case was posted for recording statement U/s.313 of Cr.P.C. But accused had no opportunity to cross-examine PW1 and to adduce his defence evidence. Under these circumstances, I feel this is a fit case to remand the matter for fresh disposal in accordance with law with a direction to the lower court to give an opportunity to the accused to cross-examine PW1 and to adduce defence evidence of the accused. Otherwise, the accused will be put to irreparable hardship and he will loose his opportunity to cross- examine PW1 and to lead defence evidence. This court cannot confirm the judgment of conviction without giving an opportunity to the accused to cross-examine PW1 and to lead defence evidence. However, time has to be fixed for leading evidence and to cross examine PW1 and to dispose of the case afresh by the lower court. With these observations, I hold that 13 Crl.A.854/2015 the lower court has committed an error in passing the judgment without giving an opportunity to cross-examine PW1 and to lead defence evidence. Accordingly, I answer point No.1 and 2 in the Affirmatively.
16. Point No.3: In view of my findings on point No.1 and 2, I proceed to pass the following:
ORDER The appeal filed u/sec. 374(3) of Cr.P.C. by the appellant/accused is hereby allowed with cost of Rs.2,000/-.
The judgment passed by the XXI ACMM, Bengaluru in C.C.No.13249/2012 dated 04.06.2015 is hereby set aside. The matter is remanded to the lower court with a direction to the accused to appear before the lower court on 15.3.2016 without fail and without waiting for any notice or summons from the lower court and to pay cost of Rs.2,000/- to the complainant and then file an application to recall PW1 and adduce defence 14 Crl.A.854/2015 evidence, if any. In the event of filing of such applications, the lower court shall allow the applications and permit the accused to cross examine PW1 and adduce defence evidence on or before 15.4.2016. The lower court shall give an opportunity to the complainant to adduce further evidence, if any and shall dispose off the case afresh in accordance with law within three months from 15.4.2016. If the accused fails to appear before the lower court on 15.3.2016, the lower court is at liberty to pass judgment on the basis of available evidence on record after giving an opportunity to the complainant to adduce further evidence if any.
Send a copy of this judgment to the lower court along with LCR forthwith.
(Dictated to the Judgment Writer, transcribed and typed by him, corrected and then pronounced by me in the open court on this the 25th day of February, 2016) (B.Jayantha Kumar) LX Addl.City Civil & Sessions Judge, Bengaluru.
Rrt*