Bangalore District Court
Srikanth K.P. @ Srikanth K.N vs K.N.Jyothi on 5 December, 2020
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Crl.A.No.2042/2019
IN THE COURT OF THE LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU.
Dated this the 5th day of December, 2020
-: P R E S E N T :-
Sri. RAJESHWARA, B.A., L.L.M.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
CRIMINAL APPEAL No.2042/2019
APPELLANT/ : Srikanth K.P. @ Srikanth K.N.
(ACCUSED - IN S/o. K.N.Panduranga Shetty,
TRIAL COURT) : Aged about 50 years,
R/at No.299/5, 6th Cross,
1st Block, Jayanagar,
Bengaluru-560 011.
(By Sri.R.Srinivas, Advocate)
Vs/
RESPONDENT/ : K.N.Jyothi,
W/o. Late Srinath G.K.
(COMPLAINANT Aged about 50 years,
- IN TRIAL No.77, 6th Main Road,
COURT) : 4th Block, 2nd Stage,
B.S.K. 3rd Stage,
Bengaluru-560 085.
(By Sri. G.Manivannan, Advocate)
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Crl.A.No.2042/2019
JUDGMENT
Appellant filed this appeal U/s.374(3) of Cr.P.C., being aggrieved by the judgment of conviction and order of sentence passed in C.C.No.23528/2016 dated 31.8.2019 on the file of XII-Addl. Judge & A.C.M.M., Court of Small Causes, SCCH-8, Bengaluru (herein after referred as impugned judgment and order).
2. Parties to this appeal shall be referred to as per their ranking before the trial court for the purpose of convenience and for better appreciation of their contentions.
3. In the memorandum of appeal, appellant submitted that, impugned judgment of conviction and order of sentence passed by the trial court is contrary to the provisions of N.I.Act and precedents laid down by the Hon'ble Apex Court. Trial court has not followed settled 3 Crl.A.No.2042/2019 position of law in the prosecution of complaint U/s.138 of N.I.Act. Trial court has not followed the precedents of Hon'ble Supreme Court pronounced in M/s.Kumar Exports Case. Trial court has not considered the contents of Ex.D.3 to Ex.D.4 documents produced by the accused to probablise the evidence adduced by the accused. Trial court has failed to appreciate specific defence set up by the accused that on 4.9.2014 accused had not executed Pronote and consideration receipt. Trial court has not considered the admissions elicited from Pw.1. Trial court has not considered the defence set up by the accused that, he had not given cheques as contended by the complainant. Trial court failed to appreciate the defence set up by the accused that as a matter of security, accused had given cheque to the complainant to settle the amount, after selling "sandal wood pillets" in the month of February 2016. For the said reasons, 4 Crl.A.No.2042/2019 appellant/accused prayed to interfere into the impugned judgment and order and set aside the same.
4. Along with memorandum of appeal, appellant produced certified copy of impugned judgment and order of conviction, deposition, copies of exhibited documents and complaint.
5. Respondent appeared through counsel.
6. T.C.R called for reference in this appeal. Heard arguments.
7. On the material placed before this court, following are points arisen for consideration:
1. Whether in the light of evidence and material brought before the court, trial court is justified in convicting accused/appellant for the offence punishable U/s.138 of N.I.Act and sentencing accused for the said offence?5
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2. Whether interference of this court is necessitated?
3. What Order?
8. It is answered on the aforesaid points are held as under:-
Point No.1: In the Affirmative Point No.2: In the Negative Point No.3: As per final order below, for the following:-
REASONS
9. POINTS NO.1 & 2:- These two points are taken together for common discussions.
10. Brief facts of the case of the complaint is as under;
Complainant and accused are known to each other. Accused borrowed loan of Rs.1,00,00,000/- (Rupees one crore) from the husband of the complainant for his urgent needs by executing Loan Agreement and 4 On Demand 6 Crl.A.No.2042/2019 Pronotes in favour of the husband of complainant and agreed to repay the same within one year. To discharge the said debt, accused issued 4 post dated cheques. Thereafter on 10.11.2014 husband of the complainant died. Therefore, complainant demanded the accused for repayment of said loan amount. Further accused obtained Loan Agreement, 4 On Demand Pronotes and consideration receipts, 4 post dated cheques from the complainant and executed 4 new Pronotes and issued 4 cheques bearing No.354736, 354737, 354738 and 354739 dated 7.6.2016,7.7.2016, 7.8.2016 and 9.9.2016 for Rs.25,00,000/- (twenty five lakhs) each in favour of the complainant. Complainant presented the said cheque bearing No.354738 dated 7.8.2016 for Rs.25,00,000/-, which was dishonoured by the banker of the accused for the reason "Funds insufficient". Despite issuance of legal notice, accused neither paid the bounced cheque amount 7 Crl.A.No.2042/2019 nor replied to the legal notice. Hence, complainant filed complaint against the accused/appellant U/s.200 of Cr.P.C. for the offence punishable U/s.138 of N.I.Act.
11. Perused entire order sheets, complaint filed U/s.200 of Cr.P.C., for the offence punishable U/s.138 of N.I.Act, sworn statement affidavit of the complainant, plea of accusation, examination-in-chief evidence of Pw.1 by way of affidavit, ingredients of the documents Ex.P.1 to Ex.P.7, statement of accused U/s.313 of Cr.P.C. evidence of Dw.1 and ingredients of exhibited documents at Ex.D.1 to Ex.D.4. There is no procedural defect of any nature while conducting trial relating to private complaint registered for the offence punishable U/s.138 of N.I.Act.
12. So far as appreciation of evidence is concerned, Pw.1 reiterated ingredients of the complaint in her examination-in-chief affidavit. Contents of Ex.P.1/cheque and Ex.P.2/Bank Endorsement made it clear that, cheque 8 Crl.A.No.2042/2019 issued by the accused to the complainant came to be dishonoured by the banker of the accused. Ex.P.3/legal notice, Ex.P.4/postal receipt, Ex.P.5/ Postal acknowledgment made it clear that, a legal notice was issued by the complainant to the accused demanding amount under bounced cheque. Ex.P.6/ Pronote dated 4.9.2014 and consideration receipt made it clear that, accused executed On Demand Pronote and Consideration Receipt in favour of the complainant at the time of borrowing loan. Ex.P.7 is Letter issued by the Bank. With the help of the evidence of Pw.1 and contents of Ex.P.1 to Ex.P.7, complainant successfully discharged initial burden of proof casts U/s.138 of N.I.Act. Thereafter burden shifts on the accused as per presumptions coming into play U/s.118 and 139 of N.I.Act in the form of reverse onus on the accused, to rebut presumptions.
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13. Accused appeared before the court and enlarged on bail. There is no specific plea of defence filed by the accused. To rebut presumptions, accused cross- examined Pw.1. Accused examined himself as Dw.1 and got exhibited 4 documents at Ex.D.1 to Ex.D.4.
14. Before considering the point whether accused succeeded to rebut presumptions and established his defence to the extent of probabilities, it is just and necessary to accumulate undisputed facts in this case. It is not in dispute that, bounced cheque belongs to the bank account of the accused. It is also not in dispute that, the signature appearing on the cheque is his signature. It is not disputed that, cheque presented by the complainant came to be dishonoured by the banker of the accused for the reason stated in the dishonour memo. 10
Crl.A.No.2042/2019
15. Defence set up by the accused in this case is that he had not issued bounced cheques to the complainant for discharge of any debt or liability. It is the specific contention of the accused that for settlement of sale of "sandal wood pillets" towards security purpose, he issued bounced cheques to the complainant in the year February 2016. Trial court had not appreciated admissions elicited from Pw.1.
16. To assess whether accused succeeded to establish his defence to the extent of probabilities and to rebut presumptions available in favour of the complainant, it is just and necessary to accumulate admissions elicited in the cross-examination of Pw.1. No such admissions elicited in the cross-examination of Pw.1 to show that, bounced cheque was issued by the accused to the complainant towards settlement of amount for sale of "sandal wood pillets". No such admissions elicited in 11 Crl.A.No.2042/2019 the cross-examination of Pw.1 to show that, bounced cheque was issued for security purpose.
17. In the evidence adduced by the accused as Dw.1 accused deposed that he was doing export business of 'sandal wood' and 'red sandal wood'. In addition to that he was doing business of selling gold ornaments. Further he was the member of Basavanagudi Club. 'Srinath' was introduced by 'Prakash' in Basavanagudi Club. Thereafter, said Srinath deposited Rs.1,00,00,000/- (one crore) in his business. There was an agreement to that effect. It was agreed to share profit out of sale of export of red sandal wood. At that time Srinath obtained 4 blank promisory notes. Thereafter, Srinath died. After the death of Srinath, he informed about the business of Srinath with his wife. On 20.2.2016 he issued 4 blank cheques to the complainant for security purpose. Further, he informed that as per agreement entered into between him and 12 Crl.A.No.2042/2019 Srinath, he would repay the deposited amount after export of red sandal wood. He is waiting for permissions from Director General for Foreign Trade, Commerce minister. After permission, he would export red sandal wood and repay the amount to the complainant out of that amount. He applied for certified copy of the documents from forest department. They had not given documents so far. He would produce if they issued documents. He had not received any notice. Accused produced Form No.29 and Form No.6 Tax Invoice.
17.1) In the cross-examination, Dw.1 admitted that he is B.com graduate. He know to read and write English language. Dw.1 admitted that no declaration in IT returns was made to show that Srinath invested amount in his red sandal wood business. Dw.1 admitted that he is liable to return Rs.1,00,00,000/- (one crore) borrowed from Srinath. Dw.1 admitted that signature on bounced cheque 13 Crl.A.No.2042/2019 is his signature. Dw.1 admitted that as security for repayment of Rs.1,00,00,000/-(one crore), he issued cheques. Dw.1 admitted that bounced cheque Ex.P.1 was issued for partial repayment of Rs.1,00,00,000/-(one crore) payable to Srinath. Dw.1 admitted that he had not issued any notice to the complainant not to present Ex.P.1/cheque after dishonour of two cheques in C.C.No.23527/2016. Dw.1 admitted that even today, letters are posting to his old address. Dw.1 admitted that he used to collect those letters by visiting to his old address. Now also letters and notices are addressing to the address mentioned in the legal notice. Dw.1 admitted that complainant filed present complaint against him for recovery of amount payable to Srinath. Dw.1 admitted that he is liable to make payment for complainant and he would pay the amount.
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Crl.A.No.2042/2019 17.2) Admissions elicited in the cross-examination of Dw.1 made it clear that accused is liable to make payment to the complainant under bounced cheque. Service of legal notice on the address mentioned on the legal notice is not totally unconcerned to the accused.
18. Ex.D.1 and Ex.D.2 are certified copies of Form No.29 and Form No.6 Ex.D.3 is certified copy of Tax Invoice. Ex.D.4 is Rent Agreement letter dated 1.5.2012. documents produced by the accused is not able to establish his defence to the extent of probabilities.
19. Perused the impugned judgment of conviction and order of sentence passed by the trial court. In the impugned judgment of conviction and order of sentence, trial court has appreciated all materials, oral and documentary evidence adduced on behalf of the complainant as well as the accused. After thorough consideration of provisions U/s.138 of N.I.Act as well as 15 Crl.A.No.2042/2019 provisions regarding presumptions to be taken in favour of complainant, trial court passed Impugned judgment of conviction and order of sentence holding that complainant established her case against accused for the offence punishable U/s.138 of N.I.Act. So as quantum of fine is concerned, trial court awarded fine amount almost equal to dishonoured cheque amount.
20. Advocate for complainant submitted that despite service of legal notice, no reply was given by the accused side. Accused had set up untenable defence to mislead the court that bounced cheques were issued towards loan. Accused had issued bounced cheques towards business transaction. Accused not produced sandal wood to establish defence that sandal wood supplied by the complainant was not sold. Despite summoning bank manager, accused failed to examine the bank manager. Six years are expired by receiving 16 Crl.A.No.2042/2019 Rs.1,00,00,000/-(one crore) huge amount from the complainant. According to Section 138 of N.I.Act, court has to impose double the bounced cheque amount as fine. Accused admitted receipt of cheque amount from the complainant. Further accused admitted that amount received from the complainant was not repaid. Accused admitted his signatures on bounced cheques. In view of admissions given by the accused with respect to receipt of amount, issuing cheques for repayment of amount, nothing remained to interfere into the impugned judgment of conviction and order of sentence except for enhancement of fine amount.
21. Accused not even produced any documents to show that, accused approached jurisdictional police against the complainant for misuse of cheque and for filing false complaint against the accused. Accused not even produced any documents to show that, he 17 Crl.A.No.2042/2019 instructed his banker to 'stop payment' when bounced cheque is presented for realization to show that, there was no legally dischargeable debt payable to the complainant under the bounced cheque. In the absence of any such documentary proof, it is difficult to hold that, accused is not liable to make payment under bounced cheque. Hence, accused is not eligible to get 'benefit of doubt' as there is no 'reasonable doubt' on the case of the complainant. On the other hand, complainant proved beyond 'reasonable doubt' that, the accused committed offence punishable U/s.138 of N.I.Act.
22. Compared the reasons assigned by the trial court in the impugned judgment of conviction and order of sentence as discussed above with the allegations made in the memorandum of appeal as discussed above.
23. So far as quantum of punishment is concerned, fine of Rs.25,55,000/- (twenty five lakhs fifty five 18 Crl.A.No.2042/2019 thousand) was imposed for dishonour of cheque for Rs.25,00,000/-( twenty five lakhs). In default of payment of fine, accused shall undergo S.I.for six months. Order of sentence is reasonable. There is no merit in the appeal. Order under appeal is sustainable in law. Hence, interference of this court is not necessary. Accordingly, point No.1 is answered in the affirmative and point No.2 in the Negative.
24. POINT NO.3 :- In view of findings on the above points No.1 and 2, this criminal appeal is devoid of merits and same is liable to be dismissed by confirming impugned judgment of conviction and order of sentence. Hence, following order is made:
ORDER Invoking provisions of Section 386 of Cr.P.C., this Criminal Appeal filed U/s.374(3) is dismissed.
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Consequently, impugned judgment of
conviction and order of sentence dated
31.8.2019 passed in C.C.No.23528/2016 on the file of XII-Addl. Judge & A.C.M.M., Court of Small Causes, SCCH-8, Bengaluru is hereby confirmed.
Appellant/accused is hereby directed to appear before Trial Court to deposit the fine amount or to serve the sentence.
Office is hereby directed to send back T.C.R. along with certified copy of this Judgment. (Dictated to the Judgment Writer, script typed by her and corrected, signed and then pronounced by me in the open court on this the 5th day of December, 2020.) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
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Crl.A.No.2042/2019 5.12.2020 Judgment pronounced in the open court Vide separate judgment ORDER Invoking provisions of Section 386 of Cr.P.C., this Criminal Appeal filed U/s.374(3) is dismissed.
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Crl.A.No.2042/2019
Consequently, impugned judgment of
conviction and order of sentence dated
31.8.2019 passed in C.C.No.23528/2016 on the file of XII-Addl. Judge & A.C.M.M., Court of Small Causes, SCCH-8, Bengaluru is hereby confirmed.
Appellant/accused is hereby directed to appear before Trial Court to deposit the fine amount or to serve the sentence.
Office is hereby directed to send back T.C.R. along with certified copy of this Judgment.
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.