Bangalore District Court
/ K.Lakshmana S/O K.Ramachandra vs Aged 59 Years on 22 April, 2016
IN THE COURT OF LXV ADDL CITY CIVIL AND
SESSIONS JUDGE; BANGALORE CITY
(CCH.NO 66)
PRESENT
SRI.N.R.CHENNAKESHAVA B.A.,LL.B.,
LXV ADDL CITY CIVIL & SESSIONS JUDGE,
BANGALORE
Dated this the 22nd day of April, 2016
CRL.APPEAL.NO.888/2015
Appellant / K.Lakshmana S/o K.Ramachandra,
Accused: Aged 59 years, R/at No.32, Modalappa
Street, Doddamavalli, Bengaluru.
(By Sri B.Krishne Gowda. Adv)
V/s
RESPONDENT / Smt.R.Sadavathi W/o late M.Ramesh,
Complainant: aged 52 years, R/at No.13, 7th Cross,
Lalbagh Fort Road, Bengaluru.
(By Sri Prakash.S.V, Adv)
*****
JUDGMENT
Appellant preferred this Appeal against respondent, u/Sec. 374(3) of Cr.P.C, being aggrieved by the impugned judgment of conviction & sentence passed by learned XVIII ACMM, Bangalore, in CC.No.13883/2013, dated:8/6/2015, 2 Crl.A.No.888/2015 in which Appellant was convicted, for an offence p/u/Sec.138 of NI Act.
2. Appellant and respondent were the accused and complainant, respectively; before the trial court. Hence I would like to refer the parties in this Appeal with reference to ranks, which they held in the trial court.
3. Trial court records secured.
4. Brief facts that lead into this appeal are that:
Complainant filed Private complaint U/Sec. 200 of Cr.P.C. before trial Court, alleging that her husband and accused were well acquainted with each other. Accused by approaching complainant's husband late M.Ramesh, sought hand loan to meet his family necessities and to construct house at Doddamavalli and then borrowed loan from him. Accused and his brothers K.R.Ramchandra and K.Cheluvaraju have executed hand loan receipt in favour of husband of complainant. After the death of complainant's husband, accused confirmed his liability and undertaken to 3 Crl.A.No.888/2015 discharge the loan borrowed by him. Towards discharge of said debt accused issued cheque bearing No.651043, dt.11.3.2013, for a sum of Rs.17,69,500/- drawn on State Bank of India, Vishweshwarapuram Branch. Complainant presented the said cheque for encashment, through her banker Canara Bank, V.V.Puram branch. However said cheque dishonoured for want of funds in the Account of the accused. On 22.3.2013 complainant got issued legal notice, calling upon the accused to pay the cheque amount, to which he caused reply. However, accused not repaid the cheque amount to the complainant.
5. Trial Court took cognizance of the offence and after following required procedure, has ordered to register the case and issue process against accused, who appeared through his counsel and defended the case. Accused pleaded not guilty of the accusation leveled against him and claimed to be tried. Complainant herself got examined as PW-1, she got marked 7 documents at Ex.P.1 to Ex.P.7. Accused examined u/Sec.313 of Cr.P.C. However, he 4 Crl.A.No.888/2015 denied the incriminating evidence against him. In support of defence, accused got examined himself as DW1. No documents marked on his behalf. Trial court after hearing arguments and by pronouncing judgment, has convicted and sentenced the accused.
6. Being aggrieved by the impugned judgment, accused by preferring this Appeal, sets out various grounds, contending that trial court failed to appreciate the fact that complainant while issuing legal notice, has stated that accused had borrowed hand loan of Rs.17,69,500/- from her. However in the complaint, she has stated that from her husband, accused had borrowed loan. That apart complainant had changed her version only when the accused has caused reply to the notice, contending that he had no transaction with the complainant. It is urged that trail court failed to appreciate Ex.P.6 and Ex.P.7, dt.14.11.2008, wherein accused and other persons have signed the receipts. However, complaint filed only against accused. Trial court also failed to appreciate that Ex.P.6 5 Crl.A.No.888/2015 and Ex.P.7 does not bear the signature of complainant's husband. Hence, it is very clear that complainant has misusing the blank stamp papers has filed the false complaint against the accused. Trial court has also failed to appreciate that PW1 in her cross examination deposes that her husband was running Offset printing press and were getting rent from 15 houses. However to corroborate the same, she has not placed any documents to evidence financial capacity of herself and her husband. Trial court failed to see that PW1 in her cross examination deposes that she has not received any documents from the accused after the death of her husband. Hence, it is very clear that trial court should have come to the conclusion that accused has not issued any cheque to the complainant. Hence, on these grounds, it is prayed to allow the Appeal.
7. Per contra, complainant supported the impugned judgment and prays this Court to confirm the impugned judgment of conviction and sentence.
6 Crl.A.No.888/2015
8. Heard from both sides. Learned counsel for accused filed memo with citations. I have perused the available materials on record.
9. Now the points that arise for my consideration are:
1. Whether the impugned judgment of conviction and sentence passed by the trial court, in C.C.No.13883/2013, dated 8.6.2015, is illegal, arbitrary and hence calls for interference by this court?
2. What Order?
10. My findings on the above points are :
Point No.1 : In the Negative Point No.2 : As per the final order For the following :
REASONS
11. POINT No.1: Trial court by appreciating the evidence on record has come to the conclusion that accused has committed an offence p/u/Sec.138 of N.I.Act and hence, convicted and sentenced him to pay fine amount of Rs.17,80,000/- and in default, he shall undergo simple 7 Crl.A.No.888/2015 imprisonment for 1 year and further held that out of total fine, Rs.17,70,000/- shall be paid to the complainant as compensation and remaining sum of Rs.10,000/-shall be remitted to the State.
12. I have carefully gone through the complaint, oral evidence of PW1 coupled with documentary evidence at Ex.P.1 to Ex.P.7 and also defence evidence of accused/DW1. It is the specific case of complainant that during the life time of her husband M.Ramesh, accused to meet his family necessities and also to construct the house, had borrowed hand loan from her husband and in this connection, accused and his brothers executed loan receipt at Ex.P.6 dt.10.11.2008 and 10.12.2008 and later towards repayment of said sum, accused issued a cheque to her, which is at Ex.P.1 dt.11.3.2008, for a sum of Rs.17,69,500/- drawn on State Bank of India, V.V.Puram Branch. complainant contends that she presented the said cheque for encashment through her banker Canara Bank, V.V.Puram branch, however, it was dishonored for want of 8 Crl.A.No.888/2015 funds in the Account of accused as per endorsement issued by her banker dt.12.3.2013. Averments in the complaint also discloses that after dishonour of Ex.P.1, she caused legal notice at Ex.P.3 dt.22.3.2013 to the accused and the said notice has been duly served on the accused on 28.3.2013, to which he caused reply at Ex.P.7 denying the transaction. Evidence of PW1, clearly discloses that before filing complaint she has complied all the required ingredients u/Sec.138 and 142 of N.I.Act. Hence, it is very clear that complainant has discharged initial burden casted upon her. Hence presumption u/Sec.139 of N.I.Act is in favour of the complainant that cheque at Ex.P.1 has been issued to her by the accused, towards legally recoverable debt. It is pertinent to note that very presumption is a rebuttable presumption. Accused in order to rebut the presumption, himself got examined as DW1. Trial court by appreciating oral evidence coupled with documentary evidence placed by the complainant, has rightly come to the conclusion that complainant has complied all the required ingredients u/Sec.138 of N.I.Act.
9 Crl.A.No.888/2015
13. Trial court by examining evidence of accused/DW1, has come to the conclusion that accused has failed to rebut the presumption and thereby he has committed an offence p/u/Sec.138 of N.I.Act. It is important to note that DW1 in his defence evidence, denies that he alleged to have been borrowed loan from the husband of complainant and towards repayment of said sum, he issued cheque at Ex.P.1 to the complainant. It is pertinent to note that accused in his defence evidence admits the suggestion that he was well acquainted with deceased husband of complainant. DW1 deposes that during the year 2002, about on 8 - 10 occasions, he had borrowed loan from the husband of complainant and repaid the said sum. According to DW1, at the time of borrowing of loan, he issued blank signed cheques and stamp papers to the husband of complainant. According to DW1, after repayment of loan amount, he use to borrow fresh loan from the husband of complainant. However, he is not at all due any payment in favour of deceased husband of complainant. DW1 categorically denies the suggestion that 10 Crl.A.No.888/2015 towards repayment of loan, he issued cheque at Ex.P.1 to the complainant. It is pertinent to note that cheque at Ex.P.1 pertains to accused and his signature at Ex.P.1 is not in dispute. However, it is his contention that written contents at Ex.P.1 are not in his handwriting. Therefore, by setting out the grounds, accused contends that there was no legally recoverable debt due from him to the complainant. Trial court by appreciating evidence placed by complainant as well as accused, has rightly held that upon appreciating evidence, it disclose that deceased husband of complainant and accused were well acquainted with each other and there was loan transaction between them. Trial court also held that evidence of DW1 discloses that there was financial transaction between deceased husband of complainant and accused. Hence, trial court rightly held that when the accused once admits that he borrowed loan from the deceased husband of complainant, burden lines on him to prove the repayment of said loan amount who complainant husband, by placing convincing and cogent evidence. However, to corroborate the evidence of accused, 11 Crl.A.No.888/2015 except his self testimony, absolutely he has not placed any documentary or oral evidence and more so, accused also not disputes his signature appears at Ex.P.6 i.e. loan receipt and also signature of K.Ramachandra and K.Cheluvaraju. Trial court by appreciating Ex.P.6 has come to the conclusion that accused and his brothers borrowed loan of Rs.3,00,000/- each on 10.11.2008 and 20.12.2008. Likewise Rs.2,00,000/- each on 10.1.2009 and 10.2.2009 . Trial court further held that assuming that Ex.P.6 says about borrowing of loan only to the tune of Rs.10,00,000/- , at the same time to that effect, PW1 has not been cross examined on behalf of accused. Therefore in the absence, mere highlighting the contradiction, is of no consequence. On the other hand, trial court held that there is every possibility that the accused towards repayment of interest on the loan amount, had issued cheque at Ex.P.1 for Rs.17,69,500/-. In my view assuming that Ex.P.6 says about the liability to the tune of Rs.10,00,000/- and the cheque at Ex.P.1 issued of Rs.17,69,500/-, at the same time, PW1 has not been thoroughly cross examined in this 12 Crl.A.No.888/2015 regard. That apart it is the contention of accused that during the year 2002 he borrowed loan from the deceased husband of complainant and repaid the said sum to him. However, Ex.P.6 discloses that it is of the year 2008 dt.14.11.2008. However, to strengthen the defence of accused that he had repaid the loan amount under Ex.P.6 in favour of husband of complainant, absolutely he has not placed any iota of convincing and cogent evidence. Trial court by evaluating evidence of accused/DW1, held that his contention that he handed over the blank signed stamp papers during the year 2002 in favour of deceased husband of complainant at the time of borrowing of loan is false, since, Ex.P.6 stamp papers consists of 2 stamp papers worth of Rs.100 each, dt.14.11.2008 issued by State Bank of Mysore, Basavanagudi Branch, in the name of accused. Hence, whatever the oral evidence of DW1 and suggestion tendered to PW1 during her cross examination that accused had deposited those signed blank stamp papers during the year 2002, is false. It is also important to note that DW1 in his cross examination also admits the suggestion that his 13 Crl.A.No.888/2015 brother K.Ramachandra and K.Cheluvaraju are the signatories to Ex.P.6 i.e loan receipts. That apart accused also not challenged the validity of Ex.P.6 by subjecting PW1 into cross examination. Hence, trial court rightly held that accused deemed to have admitted execution of Ex.P.6 in favour of deceased husband of complainant. More so, on going through stamp papers Ex.P.6 discloses that those stamp papers were purchased in the name of accused and not in the name of deceased husband of complainant. Therefore, contention of accused that those stamp papers were purchased by deceased husband of complainant, cannot be acceptable at all. It is also relevant to note that during the course of cross examination of PW1, it is suggested to her that during the year 2008-09 from her deceased husband, accused had borrowed loan and he repaid the said sum during the year 2010. In my view, very suggestion appears that accused takes inconsistent defence since, accused at one breath contends that he had borrowed loan during the year 2002 and at another breath accused by suggesting PW1 takes defence that he had 14 Crl.A.No.888/2015 borrowed loan from her husband during the year 2008 and 2009. It is also relevant to note that DW1 in his cross examination disposes that he deposited 4 - 5 blank signed promissory notes and 8 - 10 blank signed cheque at the time of alleged loan transaction. However to corroborate his contention, he has not placed any documentary evidence. That apart, very contention also not raised in his reply to notice at Ex.P.7. Therefore, trial court based on Sec.20 of N.I.Act, has rightly come to the conclusion that holder in due course can fill inchoate stamped instruments. Hence, assuming that accused alleged to have been handed over blank signed cheques to deceased husband of complainant, he impliedly authorized him in due course to fill the instrument. Trial court further held that to support defence of accused that he repaid the loan amount to deceased husband of complainant, he has not placed any stamp receipt to evidence clearance of loan. More so, trial court further held that PW1 in her evidence categorically deposes that her husband had advanced loan to the accused and towards discharge of said loan accused had issued Ex.P.1. 15 Crl.A.No.888/2015 It is also relevant to note that accused in his Appeal memorandum urges that in the notice at Ex.P.3, complainant states that she herself advanced loan to the accused and towards repayment of said loan, he issued Ex.P.1. However, at para 3 of complaint it is stated that accused availed loan from her husband M.Ramesh. Learned counsel argued that though complainant has come up with inconsistent stand, trial court has totally ignored the same. He further argued that in view of the contents of notice at Ex.P.3, it is very clear that there was no transaction between accused and complainant, since at para 3 of complaint it is categorically stated that accused had borrowed loan from the deceased husband of complainant. As far as said aspects is concerned, trial court by appreciating evidence on record, has rightly held that it is only a minor discrepancy and therefore the same can be ignored. In my view since cheque at Ex.P.1 has been issued to the complainant in connection with loan borrowed by the accused from the deceased husband of complainant and the very fact has been clearly stated by the 16 Crl.A.No.888/2015 complainant in her complaint as well as in her evidence, certainly a stray sentence made in the notice at Ex.P3, has to be ignored. Therefore I am of the considered view that accused cannot take advantage of the same. As far as contention of accused that he had financial transaction with deceased husband of accused between 1999 to 2004 and at that point of time he handed over the blank signed cheque to him and the same has been misused by the complainant is concerned, certainly accused should have taken legal action against her. However, admittedly he has not taken any steps against complainant. Trial court by evaluating very defence of the accused, has come to the conclusion that very stand taken up by the accused that complainant had misused the blank signed cheque, is only to escape from his liability to make payment under Ex.P.1. Trial court by evaluating the evidence placed by the accused, has come to the conclusion that accused has failed to rebut the presumption u/Sec.138 of N.I.Act by placing convincing and cogent evidence, since he failed to take any probable defence to evidence that cheque at Ex.P.1 has not been 17 Crl.A.No.888/2015 issued towards any debt or liability. Hence, trial court based on available evidence on record, has rightly come to the conclusion that accused has miserably failed to take probable defence to disprove the case of complainant.
14. During the course of argument, learned counsel for accused has drawn the attention of this court by filing following judgments:
1. 2012 Crl.L.J.(NOC) 401 (Kar), S.A.Sabastian V/s G.Thippergangaiah.
2. (2009) 1 SCC (Cri) 823 Kumar Exports V/s Sharma Carpets.
3. 2010(2) Kar.L.J. 284 B.Girish V/s S.Ramaiah.
4. 2010(3) Kar.L.J. 397 Amzad Pasha V/s H.N.Lakshmana.
5. 2010(3) AIR Kar R 207 S.Timmappa V/s L:.C. Prakash.
15. Learned counsel by relying the principles laid down in the aforesaid 1st judgment in S.A.Sabastian V/s G.Thippergangaiah, would submit that since there was no 18 Crl.A.No.888/2015 financial transaction took place between accused and complainant and that apart there is no document to prove the financial transaction and hence, accused is liable to be acquitted, in view of the ratio laid down in the said judgment. In my view, certainly, ratio laid down in the very case law, is not applicable to the case on hand, in view of the fact that in the present case on hand, it is the specific contention of complainant that accused had borrowed loan from her deceased husband and after his death, towards repayment of said loan amount, accused issued cheque at Ex.P.1 to her. It is pertinent to note that facts and circumstances come out in the above case law and present case on hand, are entirely different. Hence, I am not relying the above case law to the case on hand.
16. I have also gone through the 2nd case law cited above in Kumar exports case. In my view ratio laid down in the case law is also not applicable to the present case on hand, since complainant has complied all the required ingredients u/Sec.138 and 142 of N.I.Act. Hence, trial court 19 Crl.A.No.888/2015 has rightly held that presumption u/Sec.139 of N.I.Act is in favour of complainant. However, to rebut very presumption, accused has failed to take any specific defence. In my view, since the accused in this case has failed to place convincing and cogent evidence by way of defence evidence, certainly ratio laid down in the case law cannot be applicable to the case on hand. Hence, I am not relying the above case law.
17. Learned counsel also drawn the attention of the court to the ratio laid down in the 3rd judgment in B.Girish V/s S.Ramaiah cited above. I have carefully gone through the ratio laid down in the said judgment. In my view, ratio laid down in the said case law, is not applicable to the case on hand, in view of the fact that complainant got exhibited Ex.P.6, evidencing the loan borrowed from her husband by the accused. Assuming that Sec.269 of SS Act prohibits transaction involved above Rs.20,000/-, should be through payee cheque. Based on the said prohibition accused cannot take advantage of the same he cannot 20 Crl.A.No.888/2015 escape from the liability. More so, it is the case of complainant that accused had borrowed loan from her husband. Hence, he cannot take advantage on the basis of ratio laid down in the above case law. Therefore above case law is not applicable to the case on hand. Learned counsel for accused has drawn the attention of the court to the 4th case Law in, Amzad Pasha V/s H.N.Lakshmana and 5th S.Timmappa V/s L.C. Prakash. I have gone through the ratio laid down in the said judgment. In my view the ratio laid down in the said case laws, are not applicable to the case on hand, since complainant by placing convincing and cogent evidence, has satisfactorily proved the existence of debt borrowed from her husband by the accused and towards discharge of said sum, accused had issued cheque at Ex.P.1. Hence, I am of the considered view that ratio laid down in the above case laws are not applicable to the case on hand.
18. Viewed from any angle I am of the considered view that certainly the conclusion arrived at by the Trial 21 Crl.A.No.888/2015 Court that the accused has committed an offence p/u/Sec. 138 of N.I. Act, which cannot be interfered with by this Court, since, the trial Court has not committed any error in convicting and sentencing the accused. Trial Court by assigning sound reasons and based on the settle position of law, has rightly held that the accused has committed an offence p/u/Sec. 138 of N.I.Act. Hence, I am of the considered view that, certainly impugned judgment of conviction and sentence passed by the trial court is to be confirmed. For the foregoing reasons, I answer point No.1 in the "Negative."
19. POINT NO.2 : In view of my findings to point No.1, I proceed to pass the following:-
ORDER Appeal preferred by Appellant u/Sec.374(3) Cr.P.C, is dismissed.
Judgment of conviction and sentence passed by learned XVIII ACMM, Bangalore, in 22 Crl.A.No.888/2015 C.C.No.13883/2013, dated:8/6/2015, is confirmed.
Re-transmit the Trial Court Records with a copy of this Judgment, forthwith.
*** (Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 22nd day of April, 2016) (N.R.CHENNAKESHAVA ) LXV Addl. City Civil & Sessions Judge, Bengaluru.
23 Crl.A.No.888/2015 Judgment pronounced in open court, vide separately, ORDER Appeal preferred by Appellant u/Sec.374(3) Cr.P.C, is dismissed.
Judgment of conviction and sentence passed by learned XVIII ACMM, Bangalore, in C.C.No.13883/2013, dated:8/6/2015, is confirmed.
Re-transmit the Trial Court Records with a copy of this Judgment, forthwith ( N.R.CHENNAKESHAVA ) LXV Addl.City Civil and Sessions Judge, BANGALORE.