Bangalore District Court
K.Ramakrishna vs Varada Raju on 28 February, 2020
IN THE COURT OF THE LVIII ADDL.CITY CIVIL AND SESSIONS
JUDGE (CCH-59), BENGALURU CITY.
Dated this the 28th day of February, 2020
PRESENT:
Sri.Venkatesh.R.Hulgi, B.Com. LL.B (Spl.),
LI Addl. City Civil & Sessions Judge (CCH-52) &
C/c of LVIII Addl. City Civil & Sessions Judge (CCH-59),
Bengaluru City.
: CRIMINAL APPEAL NO.1416/2017:
APPELLANT : K.Ramakrishna,
S/o Kempanna,
Aged about 60 years,
Residing at No.21,
14th Cross, 2nd Main,
Agrahara Dasarahalli,
Bengaluru- 560 079.
(By Sri.K.M.T., Advocate)
-V/S-
RESPONDENT: Varada Raju,
S/o Munivenkatappa,
Aged about 52 years,
Residing at No.84,
8th Main, 6th Phase,
1st Stage,
Mahaganapathi Nagara,
Bengaluru.
(By Sri.M.C.P., Advocate)
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: JUDGMENT :
The appellant has filed this appeal under section 374(3) of Cr.P.C., praying for setting aside the judgment of conviction and order of sentence passed in C.C.No.7687/2012 dated 06.09.2017 on the file of learned XXII Additional Chief Metropolitan Magistrate, Bangalore by allowing the appeal and to acquit the appellant.
2. The parties to the appeal hereinafter would be referred to as per their ranks assigned in the trial Court for the sake of convenience.
3. The facts of the case sufficient for disposal of the present case, if briefly stated are as under:-
The complainant and accused are known to each other and on 01.03.2011 the accused had approached the complainant for hand loan of Rs.75,000/- to meet his family necessities. Considering the need of the accused, on 05.03.2011 the complainant has paid a sum of Rs.75,000/- by way of cash and the accused in order to discharge the said debt on the same day he has issued a cheque Ex.P.1 bearing No.699935 dated 07.06.2011 in favour of the complainant 3 Crl.Apl.1416/2017 and also promised to pay the interest at the rate of 18% per annum till the realization of the said loan amount. That, as the accused failed to repay the interest as promised by him, the complainant requested him for paying the said interest, but the accused went on dodging the matter. When the complainant presented the said cheque for encashment in Corporation Bank, West of Chord Road, it was returned dishonoured for want of sufficient funds in the account of the accused. The necessary endorsements given by the bank are marked as Ex.P.3 and Ex.P.4. Thereafter, the complainant has issued Ex.P.5 legal notice to the accused on 15.06.2011 through RPAD demanding repayment of the cheque amount. In spite of receiving the said notice, the accused failed to comply with the terms of the said notice. Therefore, having no other go, the complainant has filed the private complaint against the accused in the trial court for the offence punishable under section 138 of N.I.Act.
4. The trial court took cognizance and registered a case and issued summons to the accused. In response to the court summons accused appeared before the court and he was released on bail. Accusation framed and read over and explained to the
4 Crl.Apl.1416/2017 accused. The accused has pleaded not guilty and claimed to be tried.
5. In proof of his case, the complainant himself examined as PW-1 and got marked Ex.P.1 to Ex.P.10 documents in evidence and closed his side. The statement of accused under section 313 of Cr.P.C. was recorded. The accused has led defence evidence by examining himself as DW-1 and got marked Ex.D.1 and Ex.D.2 documents and closed his side
6. After hearing the arguments of both sides and appreciating the oral and documentary evidence, the learned XXII Additional Chief Metropolitan Magistrate, Bengaluru City, by impugned judgment and order of sentence dated. 06.09.2017, convicted the accused for the offence punishable under section 138 of Negotiable Instruments Act and sentenced the accused to pay fine of Rs.75,000/- and further directed the appellant/accused to pay a sum of Rs.73,000/- as compensation out of the fine amount to the respondent/complainant and remaining sum of Rs.2,000/- was ordered to be remitted to the State. Thus, being aggrieved by the 5 Crl.Apl.1416/2017 impugned order of the trial court, the appellant has filed the present appeal on the following grounds:
1) The order of the trial Court is highly illegal and arbitrary and contrary to the law and facts of the case.
2) The learned Magistrate has graved erred in coming to the conclusion that presumption under section 139 of N.I.Act is not rebutted by the appellant, which has resulted in miscarriage of justice.
3) The appellant has received Rs.20,000/- in the year 2009 from his relative Chandru and at the time of obtaining the loan, he has issued a blank cheque to Chandru and not given to the respondent.
4) Chandru is presented the cheque through respondent, who is good friend of Chandru, both are colluded and cheated the appellant.
5) The respondent has not produced any documentary evidence in support of his financial capacity to gave a sum of Rs.75,000/- to the accused.
6) The learned Magistrate failed to observe the fact that PW-1 failed to prove the existence of legally recoverable debt.
7) The learned Magistrate has committed grave error in giving the finding that the signature found on the cheque is admitted by the accused.
8) The trial court has failed to appreciate the provisions of the Criminal Procedure Code and the N.I.Act and tailed to take note of the available material on record and failed to do justice to the appellant.
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9) The trial court erred in holding that the appellant did not rebut the presumption.
10) The trial court erred in holding that the cheque was issued for liability, through the respondent failed to prove that he had lent money by leading cogent evidence.
11) The trial court gave undue importance to the evidence of the respondent and it is against the legal principles that the defence witness has to be treated on par with the prosecution witness.
On these grounds, the appellant has prayed to set aside the impugned order by allowing this appeal.
7. Trial Court records are secured.
8. Heard the arguments of both the sides.
9. The following points arise for my consideration:-
1. Whether the trial Court has committed error in convicting the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. Whether interference by this Court is necessary?
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3. What order?
10. My findings on the above points are as follows:-
POINT NO.1 - Negative;
POINT NO.2 - Negative;
POINT NO.3 - As per final order, for the following:-
: REASONS :
11. POINT NOS.1 AND 2: Since these points are inter connected to each other, hence, to avoid repetition of facts and evidence, these points are taken up together for common discussion.
12. At the out set, it is very necessary to note whether before the Trial Court the complainant has satisfied the ingredients of section 138 of N.I.Act.
13. As noted supra, Ex.P.1 is the questioned cheque, dated 07.06.2011. Ex.P.1(a) if the signature of the accused. Ex.P.2 is the challan. Ex.P.1 was presented for encashment and retuned with 8 Crl.Apl.1416/2017 endorsements "Insufficient Funds" as per Ex.P.3 and 4 both dated 09.06.2011. Immediately, thereafter the complainant has given legal notice to the accused on 15.06.2011 as per Ex.P.5 demanding for repayment of the cheque amount. Ex.P.6 and Ex.P.7 are the postal receipts for having sent the notice through and Ex.P.8 is the postal acknowledgement for having sent the notice through Registered Post Acknowledgement Due and Ex.P.9 is the complaint. All these documents are considered conjointly, prima facie they go to show that the complainant has satisfied the ingredients of section 138 of N.I.Act to initiate the prosecution against the accused. The Trial Court in its judgment impugned in the present appeal after going through the above materials on record, has consciously held that the complainant has satisfied the basic ingredients of the offence punishable under section 138 of N.I.Act. Hence, the said finding of the trial court cannot be interfered with.
14. It is the contention of the complainant that the accused approached the complainant and borrowed hand loan of Rs.75,000/- and in order to discharge the liability, the accused has issued cheque dated 07.06.2011 in favour of the complainant. The said 9 Crl.Apl.1416/2017 cheque came to be dishonoured. Therefore, the accused is guilty of the offence punishable under section 138 of N.I.Act.
15. It is pertinent to mention that through out the trial, the accused has never disputed issuance of Ex.P.1 cheque and also the signature appearing on the same. Thus, the accused has admitted Ex.P.1(a) signature. By taking into consideration these aspects, the Trial Court having placed reliance on the decision of Hon'ble Apex Court in the case of Rangappa V/s. Mohan (AIR 2010 SC 1898) has held that the complainant has made out a case punishable under section 138 of N.I.Act against the accused. Therefore, this is a fit case to draw initial presumption under section 139 of N.I.Act in favour of the complainant. Accordingly, the Trial Court raised the initial presumption in favour of the complainant and thrown the matter in the Court of the accused to rebut the said presumption.
16. Before the trial court, the complainant got examined himself as P.W.1 and produced Ex.P.1 to Ex.P.10 documents. He has been cross examined at length by the learned counsel for the accused. In the light of the cross-examination of P.W.1, it is the 10 Crl.Apl.1416/2017 defence of the accused that in the year 2009 he has received Rs.20,000/- from his relative Chandru and at the time of obtaining the loan, he has issued a blank cheque to Chandru and not given the said cheque to the complainant and he has returned the said amount to Chandru and the said Chandru was not return the cheque. The complainant is the good friend of Chandru and in pursuance of the aforesaid illegal act, the complainant filled the cheque and filed a false complaint against the accused.
17. It is not in dispute that before filing of complaint, the complainant has issued legal notice to the accused as per Ex.P.5. It is received by the accused is clear from Ex.P.6 to 8 receipts for having sent the notice and acknowledgement. Nothing had prevented the accused to give proper reply to the Ex.P.5 legal notice by mentioning that he had no loan transaction with the complainant and he had not issued any cheque much less Ex.P.1 cheque in favour of the complainant for discharge of liability. Therefore, the defence set up by the accused during the trial as an after thought becomes very clear.
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18. In the instant case, except his oral evidence as DW-1, the accused has not led any cogent evidence to rebut the said presumption regarding service of notice. Hence, in the opinion of this Court, the trial court has not committed any error in holding that the complainant has satisfied the ingredients of section 138 of N.I.Act.
19. Now, let me come to the defence set up by the accused as mentioned above. Admittedly, the accused has not disputed his signature on Ex.P.1 cheque. According to him, in the year 2009, he has received hand loan of Rs.20,000 from his relative Chandru and at the time of obtaining the loan, he has issued the said cheque as security for the loan availed from his relative one Chandru. He claims that he has paid the entire loan amount and the said Chandru was not returned the blank cheque. In this regard the accused has produced Ex.D.1-Wedding card of his daughter and Ex.D.2-receipt given by Sri. Krishna Kalyana Mantapa for receiving the choultry charge. Except his oral evidence, the accused has not produced any document worth the name in proof of this defence. In the cross- examination, the accused has admitted that no documents are 12 Crl.Apl.1416/2017 produced by him in proof of the defence set up by him. The complainant has denied the suggestion that Ex.P.1 was given as security for the loan availed by accused from one Chandru. Therefore, except the presumption that the accused has issued Ex.P.1 cheque for discharge of his legal liability, no other presumption can be drawn against the complainant as contended by the accused. The trial court has considered this aspect and held that the accused has failed to rebut the presumption under section 139 of N.I.Act, this court is of the opinion that the reasons assigned by the trial court to raise such presumption in favour of the complainant. Therefore, in my opinion, this findings of the trial court need not be interfered with by this Court.
20. The Apex Court in the case of K.Bhaskaran V/s. Sankaran Vaidhyan Balan (1999 SCC (Cri) 1284 has held that "As the signature in the cheque is admitted to be that of accused, the presumption envisaged under section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. "Section 139 of N.I.Act enjoins on the court to presume that the holder of the cheque has received it for the 13 Crl.Apl.1416/2017 discharge of any debt or liability. The burden is on the accused to rebut the aforesaid presumption". The principles of law laid down in the above decision is aptly applicable to the case on hand as in this case also the accused has failed to rebut the said presumption by adducing cogent and acceptable evidence.
21. In so far as the capacity of the complainant to lend the amount is concerned, very recently the Hon'ble Apex Court in the case of Rohitbhai Jivanlal Patel V/s. State of Gujarat and another (Criminal Appeal No.508/2019)(2019 Crl.R.P. 2400) has made it very clear that the capacity of the complainant to lend the money is not a serious issue in the cases of the present nature.
22. Thus, in my considered opinion, the Trial Court has come to a proper conclusion that the accused is guilty of the offence punishable under section 138 of N.I.Act. Therefore, the judgment of the trial court does not call for interference at the hands of this Court. Hence, for the reasons and discussions made above, I answer point Nos.1 and 2 in the "Negative".
14 Crl.Apl.1416/2017
23. POINT No.2: In view of my finding on point Nos.1 and 2, in the result, I proceed to pass the following:
: ORDER :
The appeal filed by the appellant under section 374(3) of Cr.P.C., is hereby dismissed.
The judgment and order passed by the learned XXII Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.7687/2012 dated 06.09.2017 is hereby confirmed.
Send copy of this judgment along with LCR to the trial court forthwith. (Dictated to the Judgment Writer, transcribed by her, then corrected and pronounced by me in the open court on this the 28th day of February 2020) (VENKATESH.R.HULGI) C/C of LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.
15 Crl.Apl.1416/2017 Judgment pronounced in the open Court ( vide separate order) ORDER The appeal filed by the appellant under section 374(3) of Cr.P.C., is hereby dismissed.
The judgment and order passed by the learned XXII Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.7687/2012 dated 06.09.2017 is hereby confirmed.
Send copy of this judgment along with LCR to the trial court forthwith.
(VENKATESH.R.HULGI) C/C of LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.
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