Bangalore District Court
Smt. Adilakshmi vs Smt. T.S. Chikkamma on 30 November, 2015
IN THE COURT OF THE LI ADDL. CITYF CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 30th day of November 2015
PRESENT:
Sri G.D.Mahavarkar, M.A., LL.B (Spl),
M.L. (Lab & Indstrl Rlns & Adm. Laws),
LL.M (Business Laws), M.Phil-in-Law
(Juridical Science)
LI Addl. City Civil & Sessions Judge, Bengaluru City.
Crl. Appeal No. 492/2014
Appellant : Smt. Adilakshmi,
Original-Accused W/o. Subba Rao,
Aged about 50 years,
KSFC Bhavan, 3rd Floor,
No.1/1, Thimmaiah Road,
Near Cantonment Railway
Station,
Bangalore - 560 001.
(By Sri Subhas (Patil),
Advocate)
Vs.
Respondent : Smt. T.S. Chikkamma,
Original-Complainant W/o. V.C. Gowda,
Aged about 54 years,
R/a. No.688, 1st Floor,
2nd Block, 2nd Main Road,
2nd Stage, Rajajinagar,
West Wing,
2 Crl.Appeal No.492/2014
Bangalore - 560 010.
(By Sri B.C. Venkatesh,
Advocate)
* * * *
JUDGMENT
This is an appeal preferred by the appellant/original-accused against the respondent/original-complainant U/Sec.374(3) of
Cr.P.C., against the impugned conviction judgment passed by the XIX ACMM Court, Bengaluru, in it's CC No.3459/2009, dated 16.04.2014.
2. The original-accused before the lower court having preferred the instant appeal against the original- complainant, as the appellant and the respondent, respectively, are hereby assigned with their original ranks before the lower court i.e., the appellant as the accused and the respondent as the complainant in the instant 3 Crl.Appeal No.492/2014 discussion for the purpose of brevity and convenience to avoid the confoundation and perplexity.
3. This is a criminal case at CC No.3459/2009 arising-out of the PCR No.335/2009 filed by the complainant against the accused before the lower court seeking for taking cognizance for the offence committed by the accused U/Sec.138 of the Negotiable Instruments Act, 1881 and punish her in accordance with law and for the grant of compensation to the complainant as per Section 357 of Cr.P.C. towards the face-value of the cheque with other incidental charges etc.
4. The epitomized facts projected from the complaint before the lower court run thus:
The complainant and accused being the close-
friends working in the same financial institution situated at Bengaluru, the accused having approached the complainant in the month of June 2008 for a hand-loan of Rs.10,00,000/-, the complainant advanced the said 4 Crl.Appeal No.492/2014 hand-loan of Rs.10,00,000/- on 25.06.2008 to the accused, for which the accused had issued the post-
dated cheque of Rs.10,00,000/- with post-date as 18.10.2008, bearing No.529736, drawn on Canara Bank, KSFC Complex Branch, Bengaluru - 560 052, towards the dischargence of the said loan amount, which was agreed to repay the same within 4 months. But, after the efflux the stipulated period of 4 months, despite of repeated requests and demands made by the complainant, the accused remained as defaulter to repay the same; Wherefore, the complainant presented the said cheque for encashment at the request of the accused, before the Canara Bank, KSFC Complex Branch, Bengaluru - 560 052, for encashment on 18.10.2008, which came to be bounced and dishonored with an endorsement as 'funds insufficient' on 22.10.2008, in respect of which, the complainant having informed the accused regarding the dishonor of the cheque, over 5 Crl.Appeal No.492/2014 phone, the accused requested the complainant to make some accommodation by granting sometime for making arrangements to repay the said amount, which ultimately the time was extended. The complainant taking-into consideration a critical position created by the accused, came to a tacit conclusion and also inferred that, the accused had taken the hand-loan of Rs.10,00,000/- by deceiving and cheating her when she issued the cheque knowing-fully-well that, she had no sufficient balance in her bank account and even not made any alternative arrangements for taking necessary arrangements.
Therefore, later-on, the complainant issued the legal notice through her counsel on 18.11.2008 through RPAD and also UCP, calling-upon the accused to pay the cheque amount of Rs.10,00,000/- within 15 days from the date of the receipt of the legal notice, which was duly served on 19.11.2008. But, unfortunately, the accused has neither complied by way of repaying the said amount 6 Crl.Appeal No.492/2014 nor replied to the said notice and thereby, the accused has committed the offence punishable U/Sec.138 of the Negotiable Instruments Act, 1881.
5. After lodging the complaint, the lower court has taken the cognizance in exercise of the powers conferred- upon it U/Sec.190(a) & (c) of Cr.P.C., against the instant accused for the offence punishable U/Sec.138 of the Negotiable Instruments Act, 1881.
6. After recording the sworn-statement of the instant complainant, the process U/Sec.204 of Cr.P.C. having been issued, the accused has put-in her appearance before the lower court in response to the summons issued against her, through her learned counsel.
7. On moving for bail, the accused has been released on bail.
8. The lower court has framed the substance of accusation for the offence punishable U/Sec.138 of the 7 Crl.Appeal No.492/2014 Negotiable Instruments Act, 1881, and the same was read over and explained to the accused in the vernacular best known to her.
9. The accused has denied the same and pleaded not guilty and further claimed to be tried.
10. In order to prove the guilt against the accused, the complainant herself has got adduced the evidence as P.W.1 and placed her reliance on the documentations marked at Exs.P.1 to P.20, in which Ex.P.1 is the cheque; Ex.P.1(a) is the signature of the accused; Ex.P.2 is the bank endorsement; Ex.P.3 is the copy of the legal notice issued against the accused on 14.11.2009; Ex.P.4 is the RPAD receipt; Ex.P.5 is the UCP receipt; Ex.P.6 is the postal acknowledgement due slip; Ex.P.7 is the complaint; Ex.P.8 is the copy of the sale deed dated 17.07.2007 executed in favour of one A. Sagayakantharaj; Exs.P.9 & P.10 are the two letters written by the accused on 18.11.2009 & 28.09.2010; 8 Crl.Appeal No.492/2014 Ex.P.11 is the postal-cover; Ex.P.12 is the reply letter dated 01.03.2010 through RPAD; Ex.P.13 is the postal- receipt; Ex.P.14 is the postal acknowledgement due slip; Exs.P.15 & P.16 are the pass-books pertaining to Karnataka Bank and Canara Bank; Ex.P.17 is the money-bond executed by the accused and Exs.P.18 to P.20 are the receipts.
11. After the complainant's evidence was closed, since the incriminating circumstances were arising-out of the evidence of the complainant's side witnesses, the statements of the accused under the provisions of Section 313 of Cr.P.C. were recorded.
12. Per contra, to rebut the case and the evidence of the complainant, the accused herself has got examined as DW.1 and also examined her son by name Praveen S as DW.2, but no reliance is placed on any documentary evidence by her.
9 Crl.Appeal No.492/2014
13. The lower court having heard the arguments advanced by both the learned counsel for the complainant as-well-as the learned counsel for the accused, basing on the material available on record from the complainant, the lower court has framed the points for it's consideration as under:
(1) Whether the complainant has proved the guilt of the accused U/Sec.138 of Negotiable Instruments Act, 1881, beyond all reasonable doubts?
(2) What order?
14. The lower court has given the findings on the points for consideration raised by it, as under:
Point No.1 .. In the Affirmative.
Point No.2 .. As per the final order,
for the following:
-------- and thereby convicted the accused by sentencing her to pay a fine of Rs.12,00,000/- and in default of payment of the same, simple imprisonment for 6 months and out of the said fine amount, the complainant is entitled for Rs.11,95,000/- the cheque amount as 10 Crl.Appeal No.492/2014 compensation and the balance amount of Rs.5,000/- is ordered to be defrayed to the State for the expenses incurred in the prosecution.
15. Being aggrieved by the impugned judgment passed by the lower court, the appellant-original accused before the lower court, has preferred the instant appeal against the respondent-original complainant before the lower court, on the following:
GROUNDS OF APPEAL
(a) The judgment and order under the appeal is illegal, arbitrary and the same is passed without the facts and circumstances of the case properly.
(b) The lower court has lost it's sight to take note-of regarding the contents of the complainant in the cross-examination regarding the fact that the complainant had no source of income to lend such huge amount to the accused.
(c) The lower court has lost it's sight to take note-of that, the complainant could not lend such a huge amount without any supporting document 11 Crl.Appeal No.492/2014 in writing as contemporary document, apart from the cheque in question.
(d) The lower court has lost it's sight to take note-of that, though the complainant has admitted that, she has no source of income to pay such huge amount as loan to the accused; Whereas, she has sold her immovable property, no substantial material is produced in respect of the said contentions.
(e) The lower court has lost it's sight to take note-of that, nowhere the complainant has contended either in the complaint or in her cross-
examination that, on what day she has lent the money to the accused specifically.
(f) The complainant has failed to establish that, the cheque in question alleged to have been issued towards the dischargence of legally enforceable debt.
(g) The lower court has failed to appreciate the various admissions and contradictions emanating in the evidence of the complainant in the right perspective.
12 Crl.Appeal No.492/2014
(h) The lower court has lost it's sight to take note-of regarding the usage of different inks in writing the said cheque in dispute.
(i) The lower court has lost it's sight to take note the defence of the accused that, the accused had issued totally 41 cheques, 16 On Demand Promissory Notes and Consideration Receipt, blank stamp-paper worth of Rs.50/- to enable the complainant to produce the same as security to arrange for the loan to commence the joint business to the sons of the accused and the complainant, in respect of which, the accused has got examined her own-son regarding the issuance of the disputed cheque and also other documents, all in blank.
(j) The lower court has lost it's sight to follow the settled principles of law.
Hence, prayed for allowing the instant appeal.
16. Per contra, the respondent-complainant has not filed any counter-objections to the instant appeal memo. 13 Crl.Appeal No.492/2014
17. I have heard the arguments of both the learned counsels for the appellant-accused as-well-as the respondent-complainant.
18. Basing on the material available on record and grounds of appeal, the points that arise for my consideration are:
(1) Whether the lower court has justified in affirming the Point No.1 raised for it's consideration holding that, the complainant has established the guilt of the accused U/Sec.138 of the Negotiable Instruments Act, 1881, beyond all reasonable doubts?
(2) Whether the impugned judgment of the lower court is arbitrary, baseless, capricious, devoid of merits, erroneous, frivolous and perverse without being on the sound principles of law and warrants for the interference by the instant court?14 Crl.Appeal No.492/2014
(3) To what order?
19. My findings on the above points are as under:
Point No.1 .. In the Negative.
Point No.2 .. In the Affirmative.
Point No.3 .. As per the final order, for
the following:
REASONS
20. The status and ranking assigned in the lower court to the complainant and accused are being adopted and adhered-to in the instant discussion for the purpose of brevity and convenience to avoid the confoundation and perplexity.
21. Point No's.1 & 2:- To avoid the reiteration of the material available in hand and to appreciate the evidence adduced before the lower court, in a better position, I hereby take-up the instant Point No's.1 & 2 together admixingly for discussion.
15 Crl.Appeal No.492/2014
22. It is the specific contention of the complainant by way of his complaint that, the complainant and accused being the close-friends working in the same financial institution situated at Bengaluru, the accused having approached the complainant in the month of June 2008 for a hand-loan of Rs.10,00,000/-, the complainant advanced the said hand-loan of Rs.10,00,000/- on 25.06.2008 to the accused, for which the accused had issued the post-dated cheque of Rs.10,00,000/- with post-date as 18.10.2008, bearing No.529736, drawn on Canara Bank, KSFC Complex Branch, Bengaluru - 560 052, towards the dischargence of the said loan amount, which was agreed to repay the same within 4 months. But, after the efflux the stipulated period of 4 months, despite of repeated requests and demands made by the complainant, the accused remained as defaulter to repay the same; Wherefore, the complainant presented the said cheque for encashment at the request of the accused, 16 Crl.Appeal No.492/2014 before the Canara Bank, KSFC Complex Branch, Bengaluru - 560 052, for encashment on 18.10.2008, which came to be bounced and dishonored with an endorsement as 'funds insufficient' on 22.10.2008, in respect of which, the complainant having informed the accused regarding the dishonor of the cheque, over phone, the accused requested the complainant to make some accommodation by granting sometime for making arrangements to repay the said amount, which ultimately the time was extended. The complainant taking-into consideration a critical position created by the accused, came to a tacit conclusion and also inferred that, the accused had taken the hand-loan of Rs.10,00,000/- by deceiving and cheating her when she issued the cheque knowing-fully-well that, she had no sufficient balance in her bank account and even not made any alternative arrangements for taking necessary arrangements. Therefore, later-on, the complainant issued the legal 17 Crl.Appeal No.492/2014 notice through her counsel on 18.11.2008 through RPAD and also UCP, calling-upon the accused to pay the cheque amount of Rs.10,00,000/- within 15 days from the date of the receipt of the legal notice, which was duly served on 19.11.2008. But, unfortunately, the accused has neither complied by way of repaying the said amount nor replied to the said notice.
23. To substantiate her contentions, the complainant herself has got adduced the evidence as P.W.1 and placed her reliance on the documentations marked at Exs.P.1 to P.20, in which Ex.P.1 is the cheque; Ex.P.1(a) is the signature of the accused; Ex.P.2 is the bank endorsement; Ex.P.3 is the copy of the legal notice issued against the accused on 14.11.2009; Ex.P.4 is the RPAD receipt; Ex.P.5 is the UCP receipt; Ex.P.6 is the postal acknowledgement due slip; Ex.P.7 is the complaint; Ex.P.8 is the copy of the sale deed dated 17.07.2007 executed in favour of one A. 18 Crl.Appeal No.492/2014 Sagayakantharaj; Exs.P.9 & P.10 are the two letters written by the accused on 18.11.2009 & 28.09.2010; Ex.P.11 is the postal-cover; Ex.P.12 is the reply letter dated 01.03.2010 through RPAD; Ex.P.13 is the postal- receipt; Ex.P.14 is the postal acknowledgement due slip; Exs.P.15 & P.16 are the pass-books pertaining to Karnataka Bank and Canara Bank; Ex.P.17 is the money-bond executed by the accused and Exs.P.18 to P.20 are the receipts.
24. Denying the entire case of the complainant, it is the specific defence of the accused that, the accused had issued totally 41 cheques, 16 On Demand Promissory Notes and Consideration Receipt, blank stamp-paper worth of Rs.50/- to enable the complainant to produce the same as security to arrange the loan to commence the joint business to the sons of the accused and the complainant. But, the complainant has misused the said blank-cheque and etc., with an ulterior motive to gain 19 Crl.Appeal No.492/2014 unlawfully. Hence, prayed for allowing the instant appeal.
25. Per contra, to rebut the case and the evidence of the complainant, the accused herself has got examined as DW.1 and also examined her son by name Praveen S as DW.2, but no reliance is placed on any documentary evidence by her.
26. On marshalling the rival contentions of both the sides, along-with the oral as-well-as the documentary evidence, it is crystal clear that, the criminal case at CC No.3459/2009 is arising-out of the PCR No.335/2009 filed by the complainant against the accused before the lower court seeking for taking cognizance for the offence committed by the accused U/Sec.138 of the Negotiable Instruments Act, 1881 and punish her in accordance with law and for the grant of compensation to the complainant as per Section 357 of Cr.P.C. towards the 20 Crl.Appeal No.492/2014 face-value of the cheque with other incidental charges etc.
27. According to the complaint, she has advanced the loan in presence of her son and on receipt of the loan amount, the accused has executed the document marked as per Ex.P.17, which is the money-bond executed by the instant accused admitting and acknowledging the loan amount of Rs.10,00,000/-. It is also contended in the complaint at Para No's.4 & 5 itself that, the accused having approached the complainant in the month of June 2008 for the hand-loan of Rs.10,00,000/- and the complainant having advanced the same to the accused on 25.06.2008, the accused had handed-over the post- dated cheque with the post-date as 18.10.2008 for Rs.10,00,000/-, bearing cheque No.529736, drawn on Canara Bank, KSFC Complex Branch, Bengaluru - 560 052, towards the dischargence of the said loan amount and had promised to repay the said amount within 4 21 Crl.Appeal No.492/2014 months and thereafter, despite of the repeated requests by the instant complainant to the accused, the accused has not paid the said amount within the stipulated period; Wherefore, as per the advise of the accused, the complainant presented the said cheque, which is marked as per Ex.P.1 through her banker for it's encashment; But, unfortunately, it came to be bounced and dishonored with a bank endorsement as 'funds insufficient' on 22.10.2008, though it was presented on 18.10.2008.
28. On the contrary, the very defence of the accused is that, the complainant being her colleague, knowing each-other since from the last 10 years, there was no any monetary transactions between herself and the complainant as alleged by the complainant in her complaint. But, she (accused) had issued 41 duly signed blank-cheques with 16 On Demand Promissory Notes and Consideration Receipts, along-with 2 to 3 signed 22 Crl.Appeal No.492/2014 blank stamped-papers for the purpose of getting the loan for the business purpose of their children and though the accused had written a letter to the complainant in the year 2009-2010 demanding for returning her duly signed blank-cheques, pro-notes, consideration receipts and signed blank-stamped papers, etc., the complainant has not returned the same and sent a false reply, stating that she is not in custody of any cheques or pro-notes, etc.
29. At the very outset, the learned counsel for the accused has pressed-into service with all the vehemence at his command that, there is no any contemporary document produced by the complainant in respect of the said disputed cheque amount to lend, to the accused, such a huge amount of Rs.10,00,000/-. But, according to the complainant, no such contemporary document is received from the accused. In respect of this particular aspect, the learned counsel for the accused has placed his reliance on the well-settled principle of precedent law, 23 Crl.Appeal No.492/2014 reported in ILR 2008 Kar. 4629 in a case between Shiva Murthy Vs. Amruthraj.
30. Therefore, there is no any substantial document produced from the complainant's side, undoubtedly. But, it does-not mean that, there was no any alleged transaction between the complainant and the accused, by overlooking the other documentary evidence placed on record.
31. On meticulous perusal of the entire oral evidence of the P.W.1 and DWs.1 & 2 coupled-with the documentary evidence marked at Exs.P.1 to P.20, it is clear that the lower court has placed it's reliance thereon the substantial documentary evidence forthcoming on record from the complainant's side coupled-with her oral evidence as P.W.1, and it has arrived at a conclusion to convict the accused, basing on the doctrine of preponderance of probabilities.
24 Crl.Appeal No.492/2014
32. It is significant to note that, it is clear from the said defence taken by the accused that, admittedly, the said Ex.P.1/cheque with her signature thereon, is belonging to the instant accused. But, it is only the dispute raised by the accused that the said cheque has been misused by the complainant by taking the same from her for the purpose of obtaining or raising the loan from the bank for the purpose of business of their children/sons.
33. It is significant to note that, when the said Ex.P.1 the alleged disputed cheque being contended to be pertaining to the accused with the post-dated as on the date of the alleged advancement of the loan of Rs.10,00,000/- to the accused, it is incumbent-upon this court to delve-into and determine as to whether there was legally enforceable debt as on the date of the alleged advancement of the said loan i.e., on 18.10.2008. 25 Crl.Appeal No.492/2014
34. No doubt, in respect of the remaining aspects, the lower court has discussed at much-length in the right perspective except the said vital aspect in connection with the debt, which is claimed to be recovered under the instant case by the complainant, was existing as on the date of handing over of the said disputed cheque as per Ex.P.1 by the accused to the complainant. If this particular aspect is established and cleared by the complainant, invariably the complainant stands succeeded in the instant case.
35. But, the lower court has ignored this particular aspect which plays the vital role to arrive at a conclusion and decide the matter before it. Because, it is a well- settled principle of law ruled by the Hon'ble Supreme Court of India in Crl.A.No.830/2014 (Arising out of SLP (Crl) No.9752/2010) in a case between M/s. Indus Airways Pvt. Ltd. & Others Vs. M/s. Magnum Aviation Pvt. Ltd. & Another, in which the Hon'ble Supreme Court 26 Crl.Appeal No.492/2014 of India relying on the provisions of Section 138 of the Negotiable Instruments Act, 1881, has made the substantial observation in it's Judgment at Para No.13 which appears to be quint-essential to cull-out hereunder for better understanding. Accordingly, it reads thus:
"The explanation appended to Section 138 explains the meaning of the expression 'debt or other liability' for the purpose of Section 138. This expression means a legally enforceable debt or other liability. Section 138 treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The explanation leaves no manner of doubt that to attract an offence under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of existing or past adjudicated liability is sine qua non for bringing an offence under Section 138. If a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical 27 Crl.Appeal No.492/2014 conclusion either because of its cancellation or otherwise, and material or goods for which purchase order was placed is not supplied, in our considered view, the cheque cannot be held to have been drawn for an existing debt or liability. The payment by cheque in the nature of advance payment indicates that at the time of drawal of cheque, there was no existing liability."
36. Apart from the same, the Hon'ble Supreme Court of India has appreciated and upheld the observations made in a case between M/s. Swastik Coaters Pvt. Ltd. Vs. M/s. Deepak Brothers and others, reported in 1997 Cri.L.J. 1942 (AP); in a case between Shanku Concretes Pvt. Ltd. and others Vs. State of Gujarat & another, reported in 2000 Cri.L.J. 1988 (Guj); in a case between M/s. Balaji Seafoods Exports (India) Ltd and another Vs. Mac Industries Ltd., reported in 1999(1) CTC 6 and in a case between Supply House, Represented by Managing Partner Vs. Ullas, Proprietor 28 Crl.Appeal No.492/2014 Bright Agencies and another, reported in 2006 Cri.L.J. 4330 (Kerala).
37. On meticulous consideration of the said observations made by the Hon'ble Supreme Court of India quoting the aforesaid decided judgments of the Hon'ble High Courts of Andhra Pradesh, Gujarat, Madras and Kerala, it is clear that, to attract the criminal liability under the provisions of Section 138 of the Negotiable Instruments Act, 1881, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque, meaning-thereby, as on the date of issuance of the cheque, there should be an existence of legally enforceable debt or other liability.
38. It is also a well-settled principle of precedent law, reported in 2010(1) AIR Kar R. 304 (B), in a case between Venkatesh Bhat, A. Vs. Rohidas Shenoy, which reads thus:
29 Crl.Appeal No.492/2014
"Negotiable Instruments Act (26 of 1881), S.138 - Dishonour of cheque - Acquittal of accused - Validity - Cheque was issued by accused to complainant under an agreement between them - If there was any violation of terms of agreement by accused, remedy open to complainant to take appropriate steps before Civil Court and not criminal Courts - Acquittal proper. (Para 11)"
39. In the instant case in hand, the lower court has made an observation in it's judgment itself that, the accused having issued the said cheque as per Ex.P.1, in support of which, the other documents marked at Exs.P.2 to P.20 are emanating substantially, the said alleged loan advanced by the complainant is legally enforceable debt or liability on the part of the accused, for which she was due to the complainant.
40. It is significant to note that, as per the said settled principle of law rendered by the Hon'ble Supreme Court of India as referred and culled-out herein before supra, inconsonance with the true-meaning of the provisions of Section 138 of the Negotiable Instruments 30 Crl.Appeal No.492/2014 Act, 1881 in it's letter and true-spirit, there should be an existence of legally enforceable debt or the liability as on the date of issuance of the cheque by the accused. Merely having issued a cheque well-in-advance will not carry the meaning of the expression "debt and other liability legally enforceable", under the explanation appended to Section 138 of the Negotiable Instruments Act of 1881.
41. In the instant case in hand, admittedly, the said cheque as per Ex.P.1 having stated to be issued by the accused, as per the contention of the complainant, as on the date of the alleged advancement of the loan of Rs.10 lakhs; But as on the date of the said issuance of the alleged cheque marked at Ex.P.1, there was no legally enforceable debt or liability on the part of the accused to consider it to be due to the complainant. When that is so, the said cheque marked at Ex.P.1 certainly do-not 31 Crl.Appeal No.492/2014 come within the purview of invoking of the provisions of Section 138 of the Negotiable Instruments Act, 1881.
42. When that is so, the question of bringing the accused within the purview of Section 138 of the Negotiable Instruments Act, 1881, does-not arise at-all, as there was no existence of legally enforceable debt or other liability; Whereas, the remedy, if any, as per law, is available to the complainant elsewhere, shall be availed by him there-from, in respect of which, it is needless to explicit, as the law itself is very clear regarding the remedy as to where it lies under such circumstances, as prevailing in the instant case in hand.
43. Therefore, under these circumstances, to put- into simple terms, the lower court having bypassed this particular said principle of law regarding the sine qua non to invoke the provisions of Section 138 of the Negotiable Instruments At,1881, which is absolutely lacking in the 32 Crl.Appeal No.492/2014 instant case in hand, it has convicted the accused under misconception.
44. Therefore, in view of these reasons, the instant accused deserves for acquittal by allowing the instant appeal, in respect of which, the lower court certainly warrants the interference by the instant court.
45. With these observations, I am inclined to answer the Point No.1 in the 'Negative' and Point No.2 in the 'Affirmative'.
46. Point No.3:- For the reasons discussed at much- length herein before supra, while answering the Point No.1 in the Negative and Point No.2 in the Affirmative, I am inclined to proceed to pass the following:
O R D E R The instant criminal appeal preferred by the appellant/original-accused against the respondent/original-complainant U/Sec.374(3) of Cr.P.C., against the impugned conviction judgment passed by the XIX ACMM Court, Bengaluru, in CC 33 Crl.Appeal No.492/2014 No.3459/2009, dated 16.04.2014, is hereby allowed by reverting the lower court judgment.
Consequent-upon the same, the instant accused/appellant hereby stands acquitted in CC No.3459/2009 of XIX ACMM Court, Bengaluru, herewith.
Send the entire LCRs to the lower court, along-with the copy of the instant judgment immediately, without causing any delay.
(Dictated to the Judgment Writer, transcribed and typed by him and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 30th day of November, 2015) (G.D.Mahavarkar) LI Addl.City Civil & Sessions Judge, Bengaluru City.34 Crl.Appeal No.492/2014
(Judgment pronounced in the open court. Operative portion of the same is extracted as under) ORDER The instant criminal appeal preferred by the appellant/original-
accused against the respondent/original-complainant U/Sec.374(3) of Cr.P.C., against the impugned conviction judgment passed by the XIX ACMM Court, Bengaluru, in CC No.3459/2009, dated 16.04.2014, is hereby allowed by reverting the lower court judgment.
Consequent-upon the same, the instant accused/appellant hereby stands acquitted in CC No.3459/2009 of XIX ACMM Court, Bengaluru, herewith.
Send the entire LCRs to the lower court, along-with the copy of the instant judgment immediately, without causing any delay.
LI Addl.City Civil & Sessions Judge, Bengaluru City.35 Crl.Appeal No.492/2014