Bangalore District Court
P K Utthaman P K vs M/S Carton World Rep By M V Vijayan on 15 October, 2024
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Crl.A.No.1109/2023
Judgment
KABC010215462023
IN THE COURT OF THE LIX ADDL. CITY CIVIL
& SESSIONS JUDGE, BANGALORE CITY (CCH-60)
Dated this the 15th day of October 2024,
PRESENT:
Sri Somashekara. A., B.A.L., LL.M.,
LIX ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE CITY.
Crl. Appeal No.1109/2023
APPELLANT/S: Sri.Utthaman P.K.,
Proprietor, Parakal Home Appliances,
No.52, Parakkal House,
1st Main, Like View Side,
Shettyhalli, Bengaluru-560 015.
(By Sri. Sridhara.T., Advocate)
-Vs-
RESPONDENT/S: M/s. Carton World,
No.83, Byraveshwara Industrial Estate,
Hegganahalli, Bengaluru-560 091.
Repted. by its Partner M.V.Vijayan.
(By Sri.T.V.Vijay Raghavan., Advocate)
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Crl.A.No.1109/2023
Judgment
JUDGMENT
The Appellant has filed this appeal U/s.374(3) of Code of Criminal Procedure assailing the judgment of conviction and order of sentence passed in C.C.No.615/2018, dated 13.07.2023 on the file of XXXVI Addl. Chief Metropolitan Magistrate, Bengaluru.
2. Rank of the parties is referred to as per their ranks assigned before the trial court.
3. The facts of the case leading to this appeal may be summarized as under:
The Respondent is complainant before the trial court. He has filed a complaint U/s.200 of Code of Criminal Procedure alleging the offence committed by the accused punishable U/s.138 of Negotiable Instrument Act (herein after referred as N.I.Act). According to the complainant, the accused had approached their firm on several occasions for financial support, by considering his request the complainant firm had made payments through 3 Crl.A.No.1109/2023 Judgment cheques on various dates from 20.12.2013 to 30.08.2016 to the tune of Rs.37,14,950/-. Against the said appeal the accused has repaid Rs.5,00,000/- to the complainant by way of cheque on 07.07.2017 and the remaining amount of Rs.32,14,950/- is due to pay by the accused. On several request and demands made by the complainant the accused agreed to pay some of Rs.10,00,000/- as part payment towards the outstanding amount and accordingly issued:-
a) Cheque bearing No.360169, dated.21.09.2017 for sum of Rs.2,50,000/-.
b) Cheque bearing No.360170, dated.21.09.2017 for sum of Rs.2,50,000/-.
c) Cheque bearing No.360168, dated.21.09.2017 for sum of Rs.5,00,000/-.
All these cheques were drawn on Shamala Vittal Co- Operative Bank. On their presentation two cheques returned with endorsement "payment stopped by drawer" another cheque 4 Crl.A.No.1109/2023 Judgment dishonored for the reasons refer to drawer vide memo dated.21.11.2017 respectively. Statutory notice dated 28.11.2017 was issued to the accused informing dishonour of the cheque and requesting her to pay the cheques amount. The said notice is dully served on the accused, he issued untenable reply dated.15.12.2017, but has not pay the cheque amount within time prescribed by law, complaint was filed. The trial court took cognizance and after going through the materials found the prima facie case against accused for the offence punishable U/s.138 of Negotiable Instrument Act, registered criminal case and issued summons.
4. Before the trial court, accused appeared, got enlarged on bail. The substance of accusation was recorded, she claimed trial. The complainant examined as PW-1 and got marked in all 17 documents from Ex.P.1 to Ex.P.17 and closed his side. The accused was examined U/s.313 of Code of Criminal Procedure. The accused got examined himself as DW-1 and on his behalf 5 Crl.A.No.1109/2023 Judgment two witnesses examined as DW-2 and DW-3 and got marked 04 documents from Ex.D.1 to Ex.D.4 and closed his side. Trial court after hearing arguments on both sides and on appreciation of oral and documentary evidence, found accused committed offence punishable U/s.138 of Negotiable Instrument Act, convicted and sentenced the accused to pay the fine of ₹.15,00,000/-(Rupees. Fifteen Lakhs only). In default to undergo simple imprisonment for a period of six months.
5. Feeling aggrieved by the said judgment, accused person has appeared before this court urging following grounds;
i) The impugned judgment of the learned Magistrate is not based on the evidence and the documents produced and there is no proper appreciation of evidence and it is opposed to the probabilities of the case.
ii) The learned magistrate has failed to take note of the discrepancies in the complaint averments, evidence of complainant and the discrepancies elicited in his cross-examination. 6
Crl.A.No.1109/2023 Judgment
iii) The learned Magistrate has failed to take note on the backside of Ex.P.4 to 6 cheques, transaction related cheques numbers mentioned thereon and though cheques are related with endorsed transaction and not with the complaint transaction.
iv) The learned Magistrate fails to appreciate that, the PW-1 is not related with the complaint firm. The alleged transaction is personal transaction of PW-1 but not of the complainant.
v) The learned magistrate has ignored the admissions elicited in the cross-examination of the complainant and wrongly jumped into the conclusion by convicting the accused.
vi) The learned magistrate has failed to take note that, said cheque was issued in blank as security towards the EX.P.17/Sale Agreement.
vii) The learned magistrate has wrongly assumed that, accused has admitted the signature on the cheque and convicted her, which is bad under law.
viii) The accused has successfully rebutted the presumptions held U/s.139 of N.I.Act, but the trial court has not considered the same and wrongly convicted the accused.
ix) The trial court has mechanically convicted the accused based on the presumptions available to the complainant U/s.138 of 7 Crl.A.No.1109/2023 Judgment N.I.Act, without considering the fact that, accused has successfully discharged the said presumptions by leading rebuttal evidence.
x)The impugned judgment is not sustainable in law or on facts.
6. On these grounds, the appellant/accused prayed to set aside the order of conviction and sentence passed by the XXXVI Addl.Chief Metropolitan Magistrate, Bengaluru dated 13.07.2023 in C.C.No.615/2018 and dismiss the complaint filed by the complainant by acquitting the appellant for the offence punishable U/s.138 of N.I.Act.
7. After registration of the appeal, notice was issued. The respondent appeared through counsel. The trial court records have been secured.
8. Heard arguments. Perused the written arguments filed by the appellant and the materials on record.
9. The points do arise for my consideration are; 8
Crl.A.No.1109/2023 Judgment
1. Whether the accused proves that, complainant is claiming time barred debt in complaint based on Ex.P.4 to 6 cheques?
2. Whether the trial court is correct in holding that, accused has committed offence punishable U/s.138 of Negotiable Instrument Act?
4. Whether there is legal infirmity in the impugned judgment, which requires interference of this court ?
5. What Order?
10. On re-appreciation of oral and documentary evidence, in the light of the arguments advanced by the learned advocates for both sides, my findings on the aforesaid points as follows:-
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, for the following:-9
Crl.A.No.1109/2023 Judgment REASONS
11. POINTS NO.1 & 2:- These points are interrelated, hence they are taken together for common discussion in order to avoid repetition of facts and evidence.
The learned counsel for the appellant canvassed in his written arguments that, complainant has filed private complaint against accused for the offence punishable U/s.138 of N.I.Act on the allegation that, accused availed loan of Rs.37,14,950/- on various dates from 20.12.2013 to 30.08.2016 for the purpose of financial necessity. It is further case of the complainant that, later on the accused repaid Rs.5,00,000/- on 07.07.2017 and remaining out standing amount of Rs.32,14,950/-. Towards part payment of the said outstanding the accused issued subject cheques for Rs.10,00,000/-. The learned magistrate ignored this material defense of the accused. Further, the accused has disputed financial capacity of the complainant to lend the huge amount, however, complainant has not placed any materials to show her source of income. The materials on 10 Crl.A.No.1109/2023 Judgment record clearly shows that, complainant's partnership firm as lent the abvove said loan amount to the accused but, the object of the firm is not of doing financial transaction. The learned Magistrate overlooked all these discrepancies in the case of the complainant and passed judgment of conviction only on the basis of presumptions and assumptions, which is not sustainable in the eye of law and needs interference at the hands of this court. Further, the learned magistrate has not properly appreciated the defense put forth by the accused person and based the conviction judgment on statutory presumptions. There was no liability for the accused to pay the cheque amount. The trial court gravely erred in not considering the contradictions and omissions in the case of the complainant and it is filed with a malafide intention to harass the accused to make wrongful gain for herself and cause wrongful loss to the accused. The learned trial court ignored all these aspect and wrongly convicted the accused, which is not sustainable in the eye of law. Therefore, the learned counsel submits that, this is a fit case to allow the appeal. 11
Crl.A.No.1109/2023 Judgment
12. The learned counsel for the respondent vehemently argued that, the trial court has rightly concluded that, the cheques in question issued towards security. The learned counsel draws the attention of the court towards various admissions given during the cross-examination of the accused that, absolutely there is no cogent and convincing evidence to support the version of the accused to the effect that, dispute cheque was issued as security and there is no liability. It was further submitted that, as there are no sufficient funds in the account of the accused, in order to save herself, from the clutches of the provisions of Section 138 of N.I.Act, this appeal is filed. Therefore, the learned counsel submits that, the judgment of the trial court is proper both in eye of law and on facts of the case and does not require any interference by this court. Accordingly, the learned counsel submits that, the appeal deserves dismissal.
13. In the back drop of the rival submissions, this court has meticulously considered the complaint averments, documents 12 Crl.A.No.1109/2023 Judgment placed by the complainant along with the oral testimony and documents placed by both parties. The complainant relied on the statutory presumptions enshrined U/s.139 R/w Sec.118 of N.I.Act.
14. The first and foremost contention taken by the accused is that he has not availed loan of Rs.37,14,950/- from complainant firm between 20.12.2013 to 30.08.2016 and not issued Ex.P.4 to Ex.P.6 cheques towards repayment of part loan amount as claimed by the complainant. Now burden is casted upon the complainant to show that their firm i.e., M/s. Cartoon was doing financial transaction of lending money to the Public. In order to show the existence of partnership firm and its activities, the PW-1 has produced Ex.P.1/Partnership Deed dated.19.08.2009. This document place vital role to decide the crux of the matter and as such I have meticulously gone through the said document. The object of the firm has been clearly stated in Page No.3 of the said deal which reads as under:-
13
Crl.A.No.1109/2023 Judgment NOW THIS DEED OF PARTNERSHIP WITNESSETH AS FOLLOWS:-
1. The name of ..................
2. The business of the firm..............
3. The objects of the firm shall be to take up manufacture of all kinds of corrugated boxed and punched cartoons and to take up any other activities has may be decided by the partners from time to time.
15. From the covenants of the said partnership deed are clearly indicates that the firm shall carry only manufacture of corrugated boxed and punched cartoons. No where in Ex.P.1/Partnership Deed, have stated regarding lending of money or doing financial business for the benefit of the firm. When there is no such object and the firm the question of lending money to the accused to the tune of Rs.37,14,950/- does not arise for consideration.
16. Be that as it may, in Ex.P.2/Letter of Authorization all the other partners of Cartoon World including the complainant Sri.M.V.Vijayan have authorized the said representative i.e., 14 Crl.A.No.1109/2023 Judgment Sri.M.V.Vijayan to initiate Criminal Proceedings U/Sec.138 of N.I. Act between the firm and the accused but in the said letter there is no mention about the availment of loan by the accused from the complainant firm.
17. No doubt, in Ex.P.3/Bank Statement some transactions have been needful regarding the debit of various amount to the account of accused from the year 2013. For the sake of argument, if the accused had availed such huge loan from the complainant firm, but the reasons for lending such huge amount has not been stated in the authorization letter in Ex.P.2/Ex.P.3. Mere producing Bank statement would not suffice the case of the complainant about their object of the firm or their activities. Therefore, on this count also the case of the complainant appears to be doubtful.
18. It is pertinent to note that if the accused is availed such huge amount from the complainant firm, they have not taken 15 Crl.A.No.1109/2023 Judgment any action for recovery of the amount, since 2013 to till 2017. The learned counsel for the Accused/Appellant has drawn the attention of this Court towards the rare/back side of Ex.P.4 to Ex.P.6/Cheques and shown the endorsement thereon. For better appreciation of the said writing found on rare side of the cheques I have extracted the same here in below:-
In rare page of Ex.P.4/Cheque reads thus:-
"Repayment of loan taken on 21.12.2013, vide cheque No.26497559, drawn on Vijaya Bank, Peenya Branch"
In rare page of Ex.P.5/Cheque reads thus:-
"Repayment of loan taken on 21.12.2013, vide cheque No.26497560, drawn on Vijaya Bank, Peenya Branch"
In rare page of Ex.P.6/Cheque reads thus:-
"Repayment of loan taken on 21.12.2013, vide cheque No.26497558, drawn on Vijaya Bank, Peenya Branch".
19. In respect of the above said writing are concerned, the PW-1 in his Cross examination as clearly admitted that his wife had acknowledge the said writings on the back side of the 16 Crl.A.No.1109/2023 Judgment said cheques. This Court has carefully gone through the Ex.P.3/Bank Statement, wherein it clearly appears that on 20.12.2013 an amount of Rs.5,00,000/- has been debited to the account of accused. On 21.12.2013 an amount of Rs.2,50,000/- each has been debited to the account of accused. In the Cross examination PW-1 has categorically admitted the fact that his wife has got endorsed on Ex.P.4 and 5/Cheques and on Ex.P.6/Cheque the auditor of the complainant has endorsed. I do not understand what is the role of the wife of the complainant and the auditor in endorsing the said writings on the rare page of Ex.P.4 to Ex.P.6/Cheques.
In the cross examination of PW-1 he clearly admitted that:
"ನಿಪಿ-4 ರಿಂದ ನಿಪಿ-6 ರ ಚೆಕ್ಕು ಗಳಲ್ಲಿನ ಮೊತ್ತವನ್ನು ಯಾರು ಭರ್ತಿ ಮಾಡಿದ್ದಾ ರೆ ಎಂದರೆ ಸಾಕ್ಷಿ ಯು ಆರೋಪಿಯೆ ೕ ಭರ್ತಿ ಮಾಡಿ ಕೊಟ್ಟಿರುತ್ತಾ ನೆಂದು ನುಡಿದಿರುತ್ತಾ ರೆ. ಸದರಿ ಚೆಕ್ಕು ಗಳಲ್ಲಿನ ಸಹಿಗಳನ್ನು ಆರೋಪಿ ನನ್ನ ಸಮಕ್ಷಮ ಮಾಡಿಲ್ಲ. ಆದರೆ ಆರೋಪಿಯೆ ೕ ಸದರಿ ಚೆಕ್ಕು ಗಳಿಗೆ ಸಹಿ ಮಾಡಿ ನನಗೆ ಕೊಟ್ಟಿರುತ್ತಾ ನೆ ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ. ನಿಪಿ-5 ಮತ್ತು 6 ಚೆಕ್ಕು ಗಳ ಹಿಂಭಾಗದಲ್ಲಿ ನಮ್ಮ ಸಂಸ್ಥೆಯ ಆಡಿಟರ್ ಬಾಲು ಎಂಬುವವರು ಬರೆದಿದ್ದಾ ರೆ. " 17
Crl.A.No.1109/2023 Judgment The above testimony of PW-1 clearly establishes that the accused has issued the above said cheques towards the loan of the year 2013.
20. It is pertinent to note that towards repayment of loan obtained on 21.12.2013 and 20.12.2013 the accused might have been issued cheques but the said cheques have been presented before the Bank in the year 2017. Relaying on the endorsements made on the rare side of the cheques it is clear that the complainant is claiming time barred debt i.e., accused allegedly issued cheques in the year 2017 towards repayment of loan availed in the year 2013. There is no provision under law to recover the time barred debt. The learned Magistrate as overlooked all these aspects and wrongly convicted the accused person which is not sustainable in the eye of law.
21. Admittedly, as per Ex.D.2/Bank Statement in the year 2013 the first loan transaction was allegedly taken place between 18 Crl.A.No.1109/2023 Judgment complainant firm and accused. The cursory reading of this document show that, the complaint is filed in the year 2017 in respect of the loan of the year 2013 is undoubtedly a time barred debt.
22. In a case of Bidar Urban Co-operative Bank Ltd, V/s. Giris, in Criminal Appeal No.20005/2016 decided on 17.12.2020, the Hon'ble Court pleased to observe that;
The contention of learned counsel for complainant that, there is no bar under law to repay the time barred debt and it is not open to the drawer of the cheque to contend that he is not liable as the debt was time barred is also not tenable as such contention is either pleaded or any legally admissible evidence was led by complainant-Bank. Such time barred debt cannot be called as legally recoverable debt so as to attract penal provision under section 138 of N.I Act."
The Kerala High Court in a decision reported in 2001 Crl.L.J 24 in case of Sasseriyal Joseph Vs Devassia, held that section 138 of the Act is attracted only if there is legally recoverable debt and it cannot be said that time barred debt is legally recoverable debt. The said Judgment rendered by Kerala High Court in Sasseriyil Joseph's case was challenged before the Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No.1785/2001 by Hon'ble Supreme Court by Judgment dated:10-09-2001 affirmed the said view of Kerala High Court.
Further the High Court of Andhra Pradesh in case of Girdhari Lal Rathi Vs P.T.V Ramanujachari and another 19 Crl.A.No.1109/2023 Judgment reported in 1997 (2) Crimes 658 held that, in case of cheque issued for time barred debt which is dishonoured the accused cannot be convicted under section 138 of Negotiable Instrument Act on the ground that the debt was not legally recoverable.
Therefore in view of the principles stated in those decisions the arguments of the learned counsel for the appellant that the said cheque can be construed as a promise to pay time barred debt is also not tenable.
In view of the principles stated in the above referred decision, it is evident that the provisions of Section 25(3) of the Indian Contract Act, 1872 is not applicable to the facts and evidence in this case.
In view of the principles stated in the above referred decision and discussion it is evident that the penal provision of Section 138 of the N.I.Act is applicable only to the cheques which are issued for the discharge in whole or in part, of any debt or other liability, which according to Explanation must be a legally enforceable debt or other liability. A cheque given in discharge of a time barred debt will not constitute an unconditional undertaking or promise in writing either expressly or impliedly so as to attract the criminal offence under section 138 of N.I Act. This was elaborated in SASSERIYIL JOSESPH's case (supra) which is affirmed by the Hon'ble Supreme Court as stated above. A cheque given in discharge of a time barred debt will not constitute a promise in writing not even an implied promise so as to attract a criminal liability under Section 138 of N.I Act."
23. On application of principle laid down in the above decision to the facts and circumstances of this case, it is obvious 20 Crl.A.No.1109/2023 Judgment that, complainant is claiming time barred debt. A cheque issue towards discharge of time barred debt cannot be considered as one issued for discharge of legally enforceable debt. Therefore, the complaint is not maintainable at threshold. The stop payment instructions issued by the accused to his banker which supports the contention of the accused. Thus, this court has no hesitation to hold that, accused has successfully rebutted the statutory presumptions by adducing, cogent and acceptable evidence.
24. In this backdrop, this court has given anxious consideration to trial court records. The averments of the complaint does reflect the date of alleged transaction. The complainant allegedly advanced loan amounting to Rs.37,14,950/- to the accused on various dates from 2013 to 2016. In the course of cross-examination PW-1 has admitted as under:-
"ಆರೋಪಿಗೆ ರೂ.37,14,950/- ಹಣವನ್ನು ಸಾಲವಾಗಿ ಫಿರ್ಯಾದಿ ಪಾಲುದಾರಿಕೆ ಸಂಸ್ಥೆಯಿಂದ ನೀಡಿದ ಬಗ್ಗೆ ತೋರಿಸಲು ಯಾವುದೇ ದಾಖಲೆಯನ್ನು ಹಾಜರುಪಡಿಸಿಲ್ಲ."21
Crl.A.No.1109/2023 Judgment "ಆರೋಪಿ ಯಾವ ವರ್ಷ, ಯಾವ ತಿಂಗಳು ಮತ್ತು ಯಾವ ದಿನಾಂಕದಂದು ಪ್ರಶ್ನಿತ ಚೆಕ್ಕನ್ನು ಕೊಟ್ಟಿರುತ್ತಾ ನೆ ಎಂದರೆ ಸಾಕ್ಷಿ ನನಗೆ ನೆನಪಿಲ್ಲವೆಂದು ನುಡಿಯುತ್ತಾ ರೆ."
"ಆರೋಪಿ ಮತ್ತು ನಿಮ್ಮ ನಡುವೆ ವೈಯಕ್ತಿಕ ವ್ಯವಹಾರವೇ ಅಥವಾ ಕಂಪನಿಯ ವ್ಯವಹಾರವೇ ಎಂದರೆ ಸಾಕ್ಷಿ ಯು ಆ ಬಗ್ಗೆ ನನಗೆ ಹೇಳಲು ಆಗುವುದಿಲ್ಲವೆಂದು ನುಡಿಯುತ್ತಾ ರೆ. ಸಾಕ್ಷಿ ಯು ಮುಂದುವರೆದು ಸದರಿ ವ್ಯವಹಾರ ನನ್ನ ವೈಯಕ್ತಿಕ ವ್ಯವಹಾರವಾಗಿತ್ತು . ಸದರಿ ವ್ಯವಹಾರಕ್ಕೆ ಕಂಪನಿಯ ಹಣ ನೀಡಿರುತ್ತೇನೆಂದು ನುಡಿಯುತ್ತಾ ರೆ."
25. The above testimony of PW-1 makes it clear that he do not know the date, month and year when the accused issued Ex.P.4 to Ex.P.6/Cheques.
26. The complainant has placed on record document Ex.P.2/Bank Statement, wherein entries regarding advancing loan in sum of Rs.37,14,950/- has not been mentioned by the complainant which are not corroborating the case of the complainant in any manner. Therefore, it cannot be said that complainant advanced loan in sum of Rs.37,14,950/- to the accused. Though, there is presumption in favour of the 22 Crl.A.No.1109/2023 Judgment complainant that the cheque in question has been issued by the accused to the complainant against legally enforceable debt or liability but this is also duty of the complainant to prove the transaction regarding borrowing the money from the complainant. The complainant has not put forth any cogent and reliable evidence regarding the transaction in sum of Rs.37,14,950/- between the complainant and the accused. Therefore, the transaction between the complainant and the accused is not proved. At the stage reliance can be made on Vijay vs Laxman and another 2013(1) RCR (Criminal) 1028 (S.C.) and John K. John vs Tom Varghese and another 2007(4) RCR (Criminal) 807 (S.C.).
27. Further the complainant has failed to mention in his Cross examination which date, month and year accused borrowed Rs.37,14,950/- from the complainant but the 23 Crl.A.No.1109/2023 Judgment complainant has not uttered a single work in regard to date and month of borrowing the said amount. This also create doubt in the mind of the Court. Reliance can be made on G. Veeresham vs S. Shiva Shanker and another 2007(4) Civil Court Cases 532 (A.P.), wherein cheque was issued against loan and loan was denied by the accused. There was no proof of lending money, even month or year of loan not disclosed. It has been held by the Hon'ble Andhra Pradesh High Court, that when complainant does not place on record any material of lending money then it is sufficient to infer that accused is able to rebut the presumption available in favour of the complainant-accused not guilty of offence u/s 138 of the Act.
28. Further he has shown ignorance about the transaction set to have been taken place between himself and the accused. He do not know exactly whether the alleged transaction is 24 Crl.A.No.1109/2023 Judgment personal or firm transaction. At one breath he clearly admitted that accused is no way concerned with the partnership firm and in other way he admitted that part amount paid by the accused and thus the PW-1 himself is not certain about the alleged claim amount and its transaction. Under these circumstances the complainant cannot permitted to take a shelter under partnership firm to recover the alleged cheque amount.
29. The next contention urged by the appellant is that on 06.07.2017 an amount of Rs.5,00,000/- has been paid by the daughter of the accused by way of account transfer to the account of the complainant. The Bank Statement has produced at Ex.D.3. In this regard the complainant has not properly explained for what reason and why he has received an amount of Rs.5,00,000/- through account transfer. In the cross examination of PW-1 he has admitted that:-
"ದೂರಿನಲ್ಲಿ ಮತ್ತು ನನ್ನ ಮುಖ್ಯ ವಿಚಾರಣೆಯ ಪ್ರಮಾಣ ಪತ್ರದಲ್ಲಿ ಆರೋಪಿತನ ಮಗಳು ಆರೋಪಿಯ ಪರವಾಗಿ ರೂ.5,00,000/- ಚೆಕ್ಕನ್ನು ನೀಡಿದ ಬಗ್ಗೆ ಕಾಣಿಸಿಲ್ಲ. ಈ ಪ್ರಕರಣದ ವ್ಯವಹಾರಕ್ಕೂ ಆರೋಪಿತನ ಮಗಳಿಗೂ ಯಾವುದೇ 25 Crl.A.No.1109/2023 Judgment ಸಂಬಂಧವಿಲ್ಲ. ದಿಃ07.07.2017 ರಂದು ಆರೋಪಿತನ ಮಗಳ ಖಾತೆಯಿಂದ ರೂ.5,00,000/- ಹಣ ವರ್ಗಾವಣೆಯಾಗಿದೆ ಎಂದರೆ ಸರಿ ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ. ನಂತರ ಸಾಕ್ಷಿ ಯು ಈ ಪ್ರಕರಣದ ವ್ಯವಹಾರಕ್ಕೆ ಸಂಬಂಧಿಸಿದಂತೆ ಹಣ ವರ್ಗಾವಣೆಯಾಗಿದೆ ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ.
30. From this part of evidence of complainant, it is obvious that, towards the alleged loan transaction on 07.07.2017 an amount of Rs.5,00,000/- has been received by the complainant from the daughter of the accused. The said fact has not been stated by the complainant in the complaint or in evidence. But, no such averments are pleaded in the complaint. It is settled law that when part payment is made by the accused, that has to be stated either in the complaint or in the evidence. At this juncture I would like to relay upon the decision reported in 2022 Live Law (SC) 830 The Hon'ble Apex Court in the case of Dashrathbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel & Another. Held that:-
Negotiable Instruments Act, 1881; Section 138, 56 - When a part- payment of the debt is made after the cheque was drawn but before the cheque is encashed, such payment must be endorsed on the cheque under Section 56 of the Act. The 26 Crl.A.No.1109/2023 Judgment cheque cannot be presented for encashment without recording the part payment. If the endorsed cheque is dishonoured on presentation, the offence under Section 138 would not be attracted since the cheque does not represent a legally enforceable debt at the time of encashment.
Negotiable Instruments Act, 1881; Section 138 - For the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation - If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque - When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the payment made may be used to negotiate the balance, if any. If the cheque that is endorsed is dishonoured when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted.
Negotiable Instruments Act, 1881; Section 138 - Though a post- dated cheque might be drawn to represent a legally enforceable debt at the time of its drawing, for the offence to be attracted, the cheque must represent a legally enforceable debt at the time of encashment. If there has been a material change in the circumstance such that the sum in the cheque does not represent a legally enforceable debt at the time of maturity or 27 Crl.A.No.1109/2023 Judgment encashment, then the offence under Section 138 is not made out.
31. Admittedly, the accused has issued blank cheuqes. If at all the accused has due of Rs.32,14,950/- towards the complainant firm in that event the complainant would have filled the said amount in the alleged cheques. But he has not done so for the reasons best known to him.
32. Further in the cross examination dated.12.03.2019 the PW-1 has categorically admitted that "ಆರೋಪಿ ನನಗೆ ದಿನಾಕಃ 03.10.2017 ರಂದು ದೂರವಾಣಿ ಮೂಲಕ ನನಗೆ ಯಾವುದೇ ಹಣ ಕೊಡಲು ಬಾಕಿ ಇರದಿದ್ದರೂ ಸಹ ಚೆಕ್ಕು ಗಳನ್ನು ಏಕೆ ನಗಧೀಕರಣಕ್ಕೆ ಸಲ್ಲಿಸಿದ್ದೀರಾ ಎಂದು ಕೇಳಿದಾಗ ನಾನು ಆರೋಪಿಗೆ ಬ್ಯಾ ಂಕ್ ಮ್ಯಾ ನೇಜರ್ ಮತ್ತು ಚಾರ್ಟೆಡ್ ಅಕೌಂಟೆಂಟ್ ರವರು ಐಟಿ ರಿಟರ್ನ್ ಸಲುವಾಗಿ ಹಾಗೇ ನಗಧೀಕರಣಕ್ಕೆ ಸಲ್ಲಿಸಿದ್ದೇನೆಂದು ಹೇಳಿದ್ದೆ, ಈ ವಿಷಯ ಧ್ವನಿ ಮುದ್ರಿತಗೊಂಡಿದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ". In this regard the learned counsel for the appellant drawn the attention of this Court towards Ex.D.2/C.D. According to the accused the complainant has categorically stated in the conversation that the cheques have been 28 Crl.A.No.1109/2023 Judgment presented only for the purpose of I.T. auditing. This aspect has not been seriously disputed by the complainant. The Trial Court has fail to appreciate these aspects and even not bother to touch upon the conversation held between the complainant and accused which has been stored in Ex.D.2/C.D. On this count the Trial Court has errored in convicting the accused.
33. The last contention taken by the accused is that he know the complainant, who intend to purchase property in his name and hence he approached him to show the site, at that point of time one Krupalani wanted to sell his site property and accordingly, both complainant and Krupalani entered into Sale transaction to purchase property for Sale consideration of Rs.1,40,00,000/- by the time the complainant had agreed to give Rs.600/- for Sq.Ft. as commission towards the Sale transaction.
Said Krupalani agreed to receive the Sale consideration and complainant agreed to pay the Sale transaction amount. Towards the said security to the said Sale transaction complainant has 29 Crl.A.No.1109/2023 Judgment received 3 cheques i.e., Ex.P.4 to Ex.P.6 for total amount of Rs.10,00,000/- from the accused. The sale transaction was completed and Sale Deed also executed as per Ex.D.1. Inspite of which the complainant has not paid the commission amount, and as such he demanded to pay the said commission amount on that grudge the complainant presented the said cheques and for wrongful gain he has filed the false complaint.
34. In support of his case the accused himself examined as DW-1 on his behalf two independent witness by name one P.L.Vijayan and Anilamol.P. They have filed their respective evidence on affidavit and supported the claim of the accused. Both of them have subjected to cross examination but nothing has been elicited from them to discard the defense of the accused.
35. It is worth to note that the Ex.P.17/Agreement of Sale, the accused stood as witness. The said Sale transaction 30 Crl.A.No.1109/2023 Judgment was held in the year 2016 and this fact has not been disputed by the complainant herein. Therefore, the accused has rebuted the presumption U/sec.138 of NI Act and further he successfully proved that he had issued Ex.P.4 to Ex.P.6/Cheques towards security of the sale transaction held between complainant and one Krupalani.
36. The complainant has presented the cheques in question twice before their banker, but he has not produced the Bank endorsement for the first presentation, which itself create doubt why the complainant has suppressed all these facts.
37. The trial court has failed to appreciate all these aspects in proper perspective. The learned Magistrate erred in appreciating the defense taken by the accused person regarding maintainability of the complaint for want of existence of legally enforceable debt and maintainability of the complaint. By ignoring all these aspects, the leaned magistrate has wrongly convicted 31 Crl.A.No.1109/2023 Judgment the accused person, which is not sustainable in the eye of law. Accordingly, these points No.1 under consideration are answered in the Affirmative and point No.2 under consideration is answered in the Negative.
38. POINT NO.3:- From the discussions on points No.1 and 2, this court opined that, the accused has successfully proved that, complaint is not maintainable for the reason that, the complainant is claiming time barred debt. By ignoring the material defence taken by the accused person, the leaned magistrate has wrongly held that, complainant has proved the guilt of the accused person punishable U/s.138 of N.I.Act, which is not sustainable in the eye of law and liable to be set aside. There is merits in the appeal. Hence, interference of this court is necessary. Accordingly, point No.3 under consideration is answered in the Affirmative.
32
Crl.A.No.1109/2023 Judgment
39. POINT NO.4:- In view of findings on the above points No.1 to 3, this criminal appeal is deserves to be allowed by setting aside the impugned judgment of conviction and order of sentence. Consequently, the accused is acquitted for the offence punishable U/s.138 of N.I.Act. Accordingly, this court proceed to pass the following:
ORDER This Criminal Appeal U/s.374(3) of Code of Criminal Procedure filed by the appellant is allowed.
Consequently, the judgment of conviction and order of sentence dated.13.07.2023 passed in C.C.No.615/2018 on the file of XXXVI- Addl.Chief Metropolitan Magistrate, Bengaluru is set aside.
Appellant/accused is acquitted for the offence punishable U/s.138 of N.I.Act.
His bail bonds and surety bonds stand cancelled.
The trial court is directed to release the 20% of fine amount deposited by accused as security in 33 Crl.A.No.1109/2023 Judgment compliance with order dated 08.09.2023 in favour of the accused in accordance with law.
Office is directed to transmit T.C.R. along with copy of this Judgment to the trial court, forthwith, for information.
(Dictated to the Typist on Computer, corrected, signed and then pronounced by me in the open court on this the 15th day of October, 2024).
(Somashekara A.) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.34
Crl.A.No.1109/2023 Judgment (Judgment pronounced in open court (vide detailed separate judgment) ORDER 35 Crl.A.No.1109/2023 Judgment This Criminal Appeal U/s.374(3) of Code of Criminal Procedure filed by the appellant is allowed.
Consequently, the judgment of conviction and order of sentence dated.13.07.2023 passed in C.C.No.615/2018 on the file of XXXVI- Addl.Chief Metropolitan Magistrate, Bengaluru is set aside.
Appellant/accused is acquitted for the offence punishable U/s.138 of N.I.Act.
His bail bonds and surety bonds stand cancelled.
The trial court is directed to release the 20% of fine amount deposited by accused as security in compliance with order dated 08.09.2023 in favour of the accused in accordance with law.
Office is directed to transmit T.C.R. along with copy of this Judgment to the trial court, forthwith, for information.
36 Crl.A.No.1109/2023 Judgment (Somashekara A.) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.