Bangalore District Court
Sri. Ramesh J vs Aged About 30 Years on 19 March, 2022
KABC010192772017
IN THE COURT OF THE LXII ADDL.CITY CIVIL
& SESSIONS JUDGE, BENGALURU
Dated this the 19 th DAY OF MARCH, 2022
PRESENT
SRI. R. ONKARAPPA, B.Sc,L.L.B.,
LXII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU (CCH-63)
Crl. Appeal No. 1103/2017
APPELLANT:/ Sri. Ramesh J.,
ACCUSED Aged about 30 years
Proprietor of
Sri. Guru Raghavendra
Tour and Travels,
No. S1, Ground Floor,
S.M.V. Point,
Munnekolala, Near H.D.F.C., ATM,
Marathahalli, Bengaluru-560 037
(By Mohan Reddy T.A., Advocate)
-Vs-
RESPONDENT :/ Sri. A. V. Gajendra,
COMPLAINANT S/o Veere Gowda,
Aged about 32 years,
R/at No. 133,
Hanumantharaju building,
Madappanahalli road,
Aishwarya Layout,
Bengaluru-560 064
2 Crl.A. 1103/2017
(By A.V.R., Advocate)
JUDGMENT
The present criminal appeal has preferred by the appellant / accused under Section 374(3) of Cr.P.C against the Judgment dated 06.07.2017 passed by the learned XVIII ACMM, Bengaluru in C.C.No. 3580/2016, wherein the said trial Court convicted the appellant for an offence punishable U/s.138 of Negotiable Instrument Act and sentenced him to pay a fine of Rs. 1,80,000/-. In default thereof, the accused shall under go simple imprisonment for two months. Out of the total a fine amount, a sum of Rs 1,73,910/- is ordered to be paid to the complainant by way of compensation. The balance amount shall be remitted as fine to the State.
2 The factual matrix of this appeal are that, the complainant is a driver cum owner of car bearing Registration No. KA-50-A-2268 and he had given his car to travel agent of Sri. Guru Raghavendra Tour and Travels run by the accused. The accused had tie up with Gruha Kalyan Real Estate Company. The complainant had given his vehicle on hire basis six cars which included the complainant's own car. The accused utilized the cars for his service. The accused failed to perform his part of agreement under which the accused was obliged to pay Rs. 1,73,910/- amount due, to the complainant towards hiring the cars. In fact, the complainant has taken over the responsibility of making payment to the concerned car owners. The accused failed to perform his part of contract. The amount 3 Crl.A. 1103/2017 is of legally recoverable liability on the part of the accused. On making several demands the accused issued a cheque bearing NO. 006841 dated 12.10.2015 for an amount of Rs. 1,73,910/- drawn on Axis Bank Ltd. The complainant presented the cheque as per the representation of the accused as on 05.12.2015 through his Axis Bank Ltd., Yelahanka Branch, Bengaluru, but it came to be dishonored as "Funds Insufficient". Immediately the complainant got issued legal notice on 04.01.2016 which was duly served on the accused on 08.01.2016. Even after that, the accused failed to make arrangement for the repayment of the same, but instead he got issued false reply on 18.01.2016. Accordingly, the complainant was forced to come up with the complaint.
3 The accused appeared before the trial court and contested the case. To prove the guilt of the accused, the complainant examined himself as P.W.1 and got marked the documents at Ex.P.1 to Ex.P7. The accused in order to prove his defence examined himself as DW1 at before the Trial Court and not got marked any documents. The trial Court recorded the 313 Cr.P.C. statement. The trial court after heard both the parties and considered the material on record the trial court has held that the accused has committed the offence under Section 138 of N.I. Act and sentenced the accused as aforesaid.
4 Against the impugned judgment the accused has preferred the present appeal on various grounds. They are, that the impugned judgment is illegal, arbitrary, perverse and not 4 Crl.A. 1103/2017 sustainable under law and on facts. That the trial court failed to appreciating the evidence on record in proper perspective and erred the same. That the trial court failed to read the deposition of D.W.1 in a right perspective. Cheque in question issued for security purpose and not for issued to discharge of any legally recoverable debt, or liability. Observation of the trial Judge is totally contradict with the material available on record. Though D.W.1 denied that the accused not concern to Gruha Kalyana Real Estate company, the trial court erred that the accused have admitted the fact of the accused tied with Gruha Kalya Real Estate. Ex.P7 document is not in a formate form acceptable as evidence. Despite the trial court got admitted and marked in favour of the complainant. The same herein not sustain under law. To avoid the repetition of the facts, the above all grounds have taken for my common discussion.
5 After service of the notice, the respondent appeared through his counsel. The Trial Court records have been secured.
6 The appellant filed written argument. Heard arguments on side of the respondent. Perused the records.
7 The points that arise for my determination are:
1. Whether the complainant established that the disputed cheque has been issued by the accused for repayment of amount?
5 Crl.A. 1103/2017
2. Whether the trial court has committed any error in law or in fact in convicting the accused?
8 My findings to the above points are as under:-
POINT No.1 :- In the Affirmative
POINT No.2 :- In the Negative for the
following:-
REASONS
9 POINT No.1 and 2:- In order to ascertain the
legality on the complaint, I perused the records. That the complainant presented the cheque bearing No.006841 as per Ex.P1 dated 12.10.2015. Cheque return memo dated 05.12.2015 as per Ex.P2. Legal notice dated 04.01.2016, as per Ex.P3. Postal receipt as per Ex.P4. Postal acknowledgment as per Ex.P5. Reply notice dated 18.01.2016 as per Ex.P6. Perused the records, the complaint came to be lodged by the complainant at before the trial court on 08.02.2016 this much of the case of the complainant have also not much disputed by the accused.
10 After careful perusal of the records, it obvious that the complainant maintained the complaint at before the trial court well in time and instrument i.e., cheque present by the complainant through his banker for encashment as per Ex.P1 also well in time. Thereby documents relied by the complainant valid in nature in accordance with law. As the trial court keenly appreciated all these facts in accordance with Section 138 and 142 of N.I. Act, I am of the opinion that the learned trial Judge 6 Crl.A. 1103/2017 adopted a rightful procedure in taking the cognizance against to the accused and disposal of the case on merits, as such there is no infirmity on record to interfere in these aspect.
11 Core substance of the complaint that, the complainant is working as a driver cum owner of car bearing Registration No.KA-50-A-2268 and the accused is a travel agent. The complainant had given his car to Sri Guru Raghavendra Tours owned by the accused who had tie up with Gruha Kalyan Real Estate Company. In fact, the accused is due to an amount of RS.1,73,910/- for hiring the car of the complainant, towards which the accused had issued a cheque bearing No.006841 dated 12.10.2015 for the same. The cheque is drawn on Axis Bank Ltd., Sarjapura Road branch, Bangalore. On presentation the cheque came to be dishonoured with an endorsement "Funds Insufficient". Accordingly, the complainant got issued legal notice to the accused on 04.01.2016 which is served on 08.01.2016. Even after that, the accused failed to make arrangement of the amount due. Accordingly, the present case is filed.
12 Whereas in the cross-examination, nothing probable defence of the accused established through the mouth of P.W.1 either by direct admissions, or by elicitations which infer the case of the accused. On the contrary, P.W.1directly answered to all the questions that, the accused obtained six vehicles including the vehicle of complainant to SGRT Travel agencies. Vehicle belonged to the complainant that KA-50-A-
7 Crl.A. 1103/2017 2268 the accused have obtained to his travel agencies on hire basis. Six vehicles which are sent by the complainant to the accused for a period of 15 days on the basis of fore-hire. Sum of Rs.2,03,910/- was the total bill to the all six vehicles including vehicle of the complainant for a period of 15 days. No bill to a tune of Rs.2,03,910/- issued by the accused to the complainant, but P.W.1-voluntarily stated accused issued a cheque in question to realise the said amount. Further P.W.1 directly answered that Ex.P1 - cheque issued to the tune of Rs.1,73,910/-.
13 In order to establish the defence of the accused the accused himself also examined at before the trial court as D.W.1. In his examination- in- chief he depose that he admitted the vehicle of the complainant being attached to his travels. He deposes the rent was Rs.29,970/- and he has transferred the amount through NEFT to the account of the complainant. He deposes other than the transaction there are no other transitions. Whereas in his cross-examination, D.W.1 run his business at the trade name of SGR. Further D.W.1 answered to the question that SGR travels mentioned in Ex.P7 not belonging to him in so far the question, Ex.P7 document bears the name of SGR travels and seal of Gruha Kalyan Real Estate, Yalahanka. Through the mouth of D.W.1 it elicited in Ex.P7 that there is an total amount of Rs.1,73,910/- mentioned . Equally admitted the suggestion Ex.P1- cheque also bears amount of Rs.1,73,910/-.
8 Crl.A. 1103/2017 14 From close reading of evidence available on record that it very much clears that neither of the parties have not disputed in so far relationship. Further the accused have also not much disputed Ex.P1- cheque belonged to his account and Ex.P1 (a) signature belonged to him. Further also a not case of the accused that no financial capacity to the complainant, no legal notice in writing served upon him. With that respect the accused have also issued Ex.P7 reply notice to the complainant after servicing of legal notice upon him. But net defence of the accused that though he run a SGR trade mark travel agency, he had not obtained any six vehicles from the complainant at any point of time. As such, according to the case of the accused Ex.P1- cheque issued for the purpose of security to the amount accrued upon the amount against to vehicle run by the complainant to the travel agency of the accused. With this respect one thing is evident the accused have a travel agency and the accused have not disputed that the complainant run his vehicle at the agency of the accused. On the contrary it is a very specific case of the complainant that, the complainant being a owner of his own vehicle, the complainant along with his vehicles he also run other five vehicles at the travel agency of the accused. Further the complainant case is that, the travel agency of the accused tie up with Gruha Kalyana Rela Estate the same six vehicles was run by the complainant at before the accused for a period of 15 days. To that period of 15 days, the accused liable to an amount of Rs.1,73,910/- in towards to rent for run the vehicles. To substantiate the same the complainant have also got marked one trip slip as per Ex.P7. When 9 Crl.A. 1103/2017 meticulous examined Ex.P7 document. Ex.P7 documents speak that at the column of vendor name, name of the accused travel agency, namely- SGR have been mutated. Further, meticulous examined Ex.P7 documents. Ex.P7 document have also speaks that number of vehicles obtained by the accused for a fore-hire basis. When further also meticulous examined Ex.P7 documents, the same Ex.P7 document have also speaks that Ex.P7 document have been endorsed by the seal of Gruha Kalyan Real Estate, Yelhanka. No doubt, in the cross- examination of D.W.1, D.W.1 tendered an explanation that, SGR Travels mentioned in Ex.P7 not belonging to him in so far the question Ex.P7 document bears the name of SGR Travels and seal of Gruha Kalyan Real Estate, Yelhanka. Except that, none of the material evidence that the accused have tendered in so far name of SGR mutated in Ex.P7 not belonging to the accused. With this respect the accused have also not made any single suggestion to PW1 that the travels agency of the accused by name SGR not concerned to the name of SGR mentioned in Ex.P7. On the contrary PW1 have directly answered to the question that the accused himself issued Ex.P1 cheque for a tune of Rs. 1,73,910/- instead of issuing a bill. With this observation that I am of the view that, in order to overcome the liability, the accused have called for an explanation to the question that the name SGR mutated in Ex.P7 not concerned to SGR Travels of the accused. Therefore I hold that the accused failed to established his probable defence against to the case of complainant with a cogent evidence.
10 Crl.A. 1103/2017 15 In view of the evidence referred above, the legal presumption under Section 139 of N.I. Act has to be raised. Raising of presumption under Section 139 of N.I. Act is permissible even as per the law laid down by the Hon'ble Supreme Court in the case of Rangappa V/s. Mohan in the decision reported in (2010) 11 SCC 441 . Such presumption includes the existence of legally enforceable debt or liability. Therefore, presumption raised to the cheque by the trial court cannot be interfered with.
16 On appreciation of entire evidence, this Court is of the opinion that the accused has failed to prove the fact that he has not issued cheque for discharge of legally enforceable debt. On the contrary, the complainant has proved that the accused has issued cheque towards discharge of legally enforceable debt and on presentation of the cheque, it was dishonored for the reasons "Funds Insufficient". Even after service of legal notice, the accused has not paid the cheques amount. Hence, in the considered view of this Court, the complainant has proved that the accused has committed an offence punishable u/s 138 of N.I. Act. Such evidence is sufficient to punish the accused for the offence under Section 138 of N.I. Act.
17 Even inspite of go through the records, there is no materials available on records to substantiate the neither of the ground which are urging by the appellant in his appeal memo and the trial court rightly appreciated the facts and law upon the 11 Crl.A. 1103/2017 case on hand, as the trial court appreciated the facts and law upon the case, I have no hesitation to agree with the observation made by the learned trial judge. In view of such an evidence on record, it is of my opinion that appellant failed to establish any illegality or error or infirmity in the judgment and sentence passed by the Learned Trial Court as such, I hold that the trial court has not committed any error illegality or infirmity in convicting the accused. Accordingly, the Appeal has to be rejected. Thus, I answer point No.1 in the Affirmative and point No.2 in the Negative and proceed to pass the following:' ORDER The Criminal Appeal filed under Section 374(3) of Cr.P.C. is hereby dismissed.
Judgment and sentence dated 06.07.2017 passed by the learned XVIII ACMM at Bengaluru in CC No. 3580/2016 is hereby confirmed.
Send the copy of the Judgment along with the records to the Trial court.
(Dictated to the Stenographer, transcribed and typed by her and then corrected and pronounced by me in the open court on this the 19 th day of March, 2022).
sd/-
(R. ONKARAPPA) LXII Addl. C.C. & Sessions Judge, BANGALORE CITY.