Bangalore District Court
Smt.M.Sukanya W/O Vishwanath vs Somesh S/O Late Basappa on 28 December, 2018
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU
(CCH-61)
Dated this the 28th day of December, 2018
:Present:
Sri Vidyadhar Shirahatti, LL.M
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl. A. No. 1221/2016
APPELLANT Smt.M.Sukanya W/o Vishwanath, Aged
about 38 years, R/at No.408, 12th Main,
1st Stage, Manjunatha Nagar,
Rajajinagar, Bengaluru.
(Sri Mahesha.M, Adv)
VS.
RESPONDENT Somesh S/o Late Basappa, Aged about
45 years, R/at No.60, 4th Cross, 1st Main,
Sanjeevini Nagar, Moodalapalya,
Bengaluru.
(By Sri.K.G.G. Adv )
JUDGMENT
This appeal filed u/Sec. 374(3) of Cr.P.C., by the appellant, being aggrieved by the judgment of conviction and sentence passed in C.C.No.23413/2015, dt.21/9/2016 for 2 Crl.A.No.1221/2016 offence punishable u/s 138 of N.I.Act on the file of XXII ACMM, Bengaluru.
2. The appellant was the accused and respondent herein was the complainant before the trial Court and they are referred to as per the ranks assigned to them before the lower court.
3. The brief facts leading to this appeal can be stated as under:-
The accused and complainant are well known to each other from last several years. The accused approached the hand loan of Rs.5,00,000/- to meet her family necessities and also for taking the house for lease. The complainant advanced the said hand loan. Further to refund the amount accused has issued cheque. When the said cheque was presented for encashment it was dishonoured for the reasons 'insufficient funds '. Then the complainant got issued legal notice to the accused who neither replied the notice nor repaid the cheque amount.3 Crl.A.No.1221/2016
4. Then the complainant presented the complaints under section.200 of Cr.P.C., for offence under Sec.138 of Negotiable Instruments Act. Learned Magistrate took cognizance and registered the case against the accused for offence punishable u/Sec. 138 of Negotiable Instruments Act and secured the presence of accused who after appearance, pleaded not guilty. Then the complainant examined himself as PW1 and also one Annegowda K.M. as PW2 and got marked documents as per Ex.P.1 to Ex.P.6. After recording of statement of accused under Sec.313 of Cr.P.C., the accused examined herself as DW1 and no document marked on her behalf.
5. The learned Magistrate on hearing the arguments on both sides, found the accused guilty and proceeded to convict the accused for offence u/s. 138 of Negotiable Instruments Act and sentenced her to pay a fine of Rs.10,05,000/- and in default of payment of fine amount, the accused shall undergo S.I. for a period of one year three months. Besides, the trial Court awarded compensation of 4 Crl.A.No.1221/2016 Rs.10,00,000/- out of the fine amount to the complainant acting u/s.357 of Cr.P.C., by passing the impugned judgment dt.21/9/2016.
6. This judgment of conviction and sentence which is now under challenge by the appellant/accused on the following grounds:-
The impugned judgment of conviction and sentence passed by the trial court is opposed to the settled principles of law, facts and probabilities of the case. The learned Magistrate grossly erred in not properly appreciating the oral and documentary evidence available on record in proper perspective. The learned Magistrate failed to appreciate the defense taken by the accused. The learned Magistrate failed to consider that demand notice has not been served on her. The trial judge failed to consider the cheque in question was not issued for discharge of debt or liability. The impugned judgment of conviction is unsustainable and not tenable in the eye of law. Hence, prayed to set aside the impugned 5 Crl.A.No.1221/2016 judgment of conviction and to acquit the accused by allowing the appeal.
7. After filing of this appeal, notice duly served on the respondent who made his appearance through a counsel. The trial Court records, have been secured.
8. inspite of providing sufficient opportunity, the learned counsel for the appellant has not addressed the arguments. Hence, arguments on behalf of appellant is taken as heard. Heard arguments of learned counsel for respondent.
9. Perused the records.
10. In the light of the contentions taken up in the memorandum of appeals, the common points that arise for my determination are as follows;
1) Whether the Court below erred in not properly appreciating the defense set up by the accused in proper perspective?
6 Crl.A.No.1221/2016 2) Whether the learned Magistrate erred in convicting the appellant/accused for offence punishable U/sec. 138 of Negotiable Instruments Act? 3) Are there any grounds to interfere with the order of conviction and sentence? 4) What order?
11. My findings on the above points are as follows:
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : in the affirmative.
Point No.4 : As per final Order
REASONS
12. I have carefully gone through the contents of appeal memo, trial Court records and the impugned judgment.
13. It is the specific case of the complainant that accused received a sum of Rs.5,00,000/- to meet her family necessities and also to take the house to lease and for repayment of the said amount, the accused issued the 7 Crl.A.No.1221/2016 cheque in question i.e., Ex.P.1. It is the further case of the complainant that since the cheque which were issued by the accused came to be bounced back as insufficient funds, the accused is liable to be convicted for offence punishable u/Sec. 138 of Negotiable Instruments Act.
14. On the other hand, it is defense set up by the accused that the she has not borrowed any loan from the complainant. It is further defense set up by the accused that she has not served with the legal notice and hence, she is not liable to pay the said cheque amount.
15. Keeping in view the rival contentions of both the parties, I have carefully gone through the evidence let in by both the parties to answer the points in controversy.
16. Obviously, the burden is on the complainant to prove that the cheque in question were issued towards discharge of legally recoverable debt or liability. In this regard, the complainant examined himself as PW1 who in his 8 Crl.A.No.1221/2016 evidence has reiterated the averments of the complaint and got marked original cheque, memo issued by the bank, receipt, copy of legal notice, postal receipt, postal acknowledgements, sale deed, as per Ex.P.1 to 6.
17. In the cross examination on behalf of the accused, PW1 states that the accused received a Rs.5,00,000/- from him to meet her family necessities and also to take house for lease and hence, to repayment of the said amount, the accused has issued cheque in question. He has stated all these facts in his notice. He denied the suggestion that he has not paid Rs.5,00,000/- to the accused He denied the suggestion that the accused has not issued the cheque.
18. A careful appreciation and evaluation of the evidence of PW1 coupled with contents of Ex.P.1 to Ex.P.6, makes it clear that the accused and complainant were known to each other very well. Herein this case the accused does not dispute cheque belongs to her bank account and her 9 Crl.A.No.1221/2016 signature found on the cheque in question. But it is her contention that, she has not borrowed any loan from the complainant. Assuming that, her contention is believed that she has not borrowed any loan from the complainant and she has not issued any cheque to the complainant. But she failed to explain how the cheque came into the hands of complainant. Moreso, to support her contention, the accused has not produced the any documents. Hence, the contention of the accused is not probable one and believable.
19. Moreover, when the accused admits her signature found on Ex.P.1 and handing over the same to complainant, the presumption under Sec.139 of Negotiable Instruments Act would arise in favour of the complainant.
20. In this regard I would like to rely upon the decisions of Hon'ble Apex court in Kishna Rao v/s Shankar Gowda in 2018(8) SCC 165 Financial loss Monterey loss - Negotiable Instrument Act 1981- 139- presumption under 139 does when may be fallen- ingredients and scope of Sec.139- does not - probable summaries- accused liberty may 10 Crl.A.No.1221/2016 adduce evidence to rebut the presumption u/Sec.139- but mere denial regarding existence of debt was not serve any purpose in the event accused is able to raise probable defense which creates doubt with regard to existence of debt or liability presumption may fall.
21. In Rangappa Vs.Mohan in AIR 2010 SC 1898 wherein it is held that, The presumption mandated by S.139 of the Act does indeed include the existence of legally enforceable debt or liability. This is of course in the nature of rebuttable presumption and it is open to the accused to raise a defense wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. S.139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of the cheque, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by S.138 can be better described as regulatory offence since the bouncing of a cheque is largely in nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of 11 Crl.A.No.1221/2016 proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is settled position that when an accused has to rebut the presumption under Sec.139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise. Therefore, if the accused is able to raise a probable defense which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defense and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.
22. Moreover, when the accused admits her signature found on Ex.P.1 and handing over the same to complainant while borrowing loan amount, the presumption under Sec.118 and 139 of Negotiable Instruments Act would arise in favour of the complainant. But the accused has not produced any materials to rebut the said presumption. As such, no material is produced appreciate the defense set up 12 Crl.A.No.1221/2016 by accused with regard. Therefore, the learned Magistrate has rightly appreciated and evaluated the evidence of PW1 in proper perspective. As such there is no any illegality or error committed by the Court below in appreciating the evidence available on record.
23. On careful appreciation of evidence of PW1 and the defense taken by the accused, it can be said that though she states that the cheque in question was not issued to the complainant, she has not explained how the cheque came into the hands of complainant. Hence, her bald say itself cannot be relied upon. Further the accused has not offered any explanation as to why she left the cheque in the hands of complainant. So, this aspect of the case goes to show that defense set up by accused is not probable.
24. Having regard to all these facts and circumstances, I am of the considered view that the learned Magistrate has rightly appreciated the oral and documentary evidence available on record in proper perspective. The 13 Crl.A.No.1221/2016 learned Magistrate committed no error or illegality in appreciating and evaluating the documents relied upon by both the parties. Herein this case, the accused failed to rebut the presumption available in favour of complainant under Sec.139 of Negotiable Instruments Act. A bald denial of the case of complainant does not amount to a defense.
25. Furthermore, the accused has not replied the legal notice which was issued to him as per Ex.P.3. It appears from the records that the notice was issued through registered post was returned as absent, intimation delivered. It shows that her action in keeping mum without replying the notice, goes to show that he purposefully kept quiet since she issued Ex.P1 towards repayment of loan amount.
26. Herein this case, the accused admits that herself and her husband filed decree of divorce and the same was ended in the compromise as Ex.D9. On perusing the said documents, it clearly shows that, the said case pertains to the year 2015 and the address of her husband mentioned in the 14 Crl.A.No.1221/2016 said decree was the same, which the complainant has sent the notice to the accused. Such being the fact, there is a deemed service of legal notice on the accused, who neither replied the same nor paid the cheque amount. Therefore, the complainant has placed sufficient and ample materials on record to believe that the Ex.P.1 cheque was issued by accused towards repayment of loan amount of Rs.5,00,000/-, which she received to meet her family necessities and to take house for lease. There are no such circumstances, wherein the case of complainant can be doubted. There are no grounds so as to interfere with the reasoning and findings of the Court below. As such the learned Magistrate committed no error or illegality in believing the case of complainant.
27. Having regard to the facts and circumstances of the case, I am of the view that the impugned judgment of conviction and sentence passed by the learned Magistrate is in accordance with settled principle of law, facts and probabilities of the case. Absolutely there are no grounds to interfere in the reasoning and findings given by the Court 15 Crl.A.No.1221/2016 below so as to convict the accused. As such the impugned judgment of conviction is in accordance with the settled principles of law, facts and probabilities of the case. Hence, the impugned judgment of conviction deserves to be confirmed with.
28. However, the facts and circumstances involved in the case on hand, do warrant this Court to interfere with regarding imposing of sentence amount and requires to modify the sentence imposed on accused by trial Court. Because the transaction between the complainant and accused has taken place in view of the close acquaintance. The accused issued the cheque in question towards the repayment of the amount, which she received from the complainant to meet her family necessities. But the learned Magistrate awarded compensation double the cheque amount without assigning any reasons and without any basis. Though it is permissible under law to impose fine to the tune of double the cheque amount, sufficient justifiable grounds 16 Crl.A.No.1221/2016 need to be assigned by Court to impose fine or award compensation to the tune of double the cheque amount.
29. Herein this case, absolutely, no reasons are assigned by the learned Magistrate to award compensation double the cheque amount. It appears, the loan transaction has taken place under the close acquaintance of complainant with accused. Even there is no such agreement to pay interest on the loan amount. Even no document was obtained from the accused either as a security or with regard to payment of any interest. Therefore, these facts would go to show that the complainant had no intention to claim any interest on such amount. Such being the fact, the learned Magistrate is not justified in awarding compensation double the cheque amount.
30. Furthermore, the thing would have been different if the learned Magistrate assigned any reasons for awarding compensation double the cheque amount. As such, the learned Magistrate is not justified in awarding compensation 17 Crl.A.No.1221/2016 double the cheque amount without assigning any reasons to that effect. So, on these facts, I am of the view that the impugned order of sentence deserves to be interfered so as to modify the quantum of compensation awarded to complainant. Therefore, considering the fact that the transaction has taken place between the complainant and the accused company with regard repayment of amount, which she received from the complainant to meet her family necessities.
31. It is relevant to note that instead of convicting and sentencing the accused u/Sec. 255(2) Cr.P.C, the trial court by invoking u/Sec.265 of Cr.P.C, has convicted and sentenced the accused, though the said provision does not empower the Magistrate to convict and sentence the accused. On going through impugned judgment, trial court without following Sec.138 of N.I Act, has imposed sentence on the accused to pay fine amount of Rs.5,000/-, in default he shall undergo simple imprisonment for a period of 3 months. More so, trial court while awarding compensation, 18 Crl.A.No.1221/2016 has straightaway awarded compensation and thereby trial court has committed an error. Therefore, I am of the considered view that imposition of sentence on the accused and compensation awarded to the complainant, by the trial court, are to be modified. In my view, having regard to the facts and circumstances to the case, if the accused is convicted and sentenced to pay fine amount of Rs.5,05,000/- which would met the ends of justice and in default, if he is imposed with sentence of imprisonment for a period of one year, which would met the ends of justice. Further I am of the considered view that out of fine amount, acting u/Sec.357 of Cr.P.C. complainant is awarded with compensation of Rs.5,00,000/- and to remit remaining amount of Rs.5,000/- to the state exchequer, it would met the ends of justice. Hence, the impugned order of sentence deserves to be interfered only with regard to quantum of compensation awarded by learned Magistrate. Hence, impugned judgment of conviction deserves to be confirmed with by modifying the quantum of sentence as observed above. Accordingly, I answer point 19 Crl.A.No.1221/2016 No.1 and 2 in the negative and point No.3 partly in the affirmative.
32. Point No.4: In view of my findings on point No.1 to 3, I proceed to pass the following:
ORDER The appeal filed by appellants U/sec. 374 of Code of Criminal Procedure is hereby allowed in part.
The impugned judgment of conviction passed by the XXII ACMM, Bengaluru, in CC No.23413/2015 dt.21/9/2016 is confirmed. However the sentence stands modified as under:-
Acting u/s. 264 of Cr.P.C, the accused is hereby convicted and sentenced to pay fine of Rs.5,05,000/- for the offence punishable u/Sec.138 of Negotiable Instruments Act and in default of payment of fine amount, the accused shall undergo S.I. for a period of one year.
Out of the fine amount, a sum of
Rs.5,00,000/- is ordered to be paid as
compensation to the complainant under Sec.357 of 20 Crl.A.No.1221/2016 Cr.P.C., and remaining Rs.5,000/- shall be appropriated to the government.
Send a copy of this judgment to the lower Court along with LCR.
*** (Directly dictated to the stenographer on computer and then pronounced by me in the open court on this the 28th day of December, 2018) (Vidyadhar Shirahatti) LX Addl.City Civil & Sessions Judge, Bengaluru.21 Crl.A.No.1221/2016
Judgment pronounced in the open court. Vide separately ORDER The appeal filed by appellants U/sec. 374 of Code of Criminal Procedure is hereby allowed in part.
The impugned judgment of conviction passed by the XXII ACMM, Bengaluru, in CC No.23413/2015 dt.21/9/2016 is confirmed. However the sentence stands modified as under:-
Acting u/s. 264 of Cr.P.C, the accused is hereby convicted and sentenced to pay fine of Rs.5,05,000/- for the offence punishable u/Sec.138 of Negotiable Instruments Act and in default of payment of fine amount, the accused shall undergo S.I. for a period of one year.
Out of the fine amount, a sum of Rs.5,00,000/- is ordered to be paid as compensation to the complainant under Sec.357 of Cr.P.C., and remaining Rs.5,000/- shall be appropriated to the government.
Send a copy of this judgment to the lower Court along with LCR.
(Vidyadhar Shirahatti) LX Addl.City Civil & Sessions Judge, Bengaluru.