Bangalore District Court
Smt. Chowdamma vs W/O Late Chandrappa on 11 February, 2020
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 11th day of February, 2020.
Crl. Appeal. No.25192/2019
WITH
Crl. Appeal. No.25209/2019
Cause title of Crl. Appeal. No.25192/2019
Appellant/ Smt. Chowdamma,
Accused: W/o Late Chandrappa,
Aged about 45 years,
D No.733/44, Sapthagiri Nilaya,
Near BESCOM Office,
Chowdeswari Layout,
Marathahalli,
Bengaluru560 037.
[By Sri. Hanumantharaya D
Advocate]
V/s
2 Crl.Appeal.No.25192/2019
C/W 25209/2019
Respondent/ M/s. Orange Budget Hotels &
Complainant: Hospitality Private Limited,
Rep. by its Managing Director,
Mr. Musunur Srinivas,
S/o M. Apparao,
Aged about 49 years,
Its registered office at
Visakhapatnam,
Flat No.602, Balaji Dolphin
Heights Apartment,
North Extension, Seethammadhara,
Vsakhapatnam.
Also at:
Villa No.711, Phase3,
Adarsh Palm Treat,
Devarabeesanahalli,
Bengaluru560 103.
(By B. Siddeswara & Associates
Adv.)
Cause title of Crl. Appeal. No.25209/2019
Appellant/ M/s. Orange Budget Hotels &
Accused: Hospitality Private Limited,
Rep. by its Managing Director,
Mr. Musunur Srinivas,
Aged about 47 years,
Its registered office at
Flat No.602, Balaji Dolphin
Heights Apartment,
North Extension, Seethammadhara,
Vishakapatnam.
3 Crl.Appeal.No.25192/2019
C/W 25209/2019
Also at:
Villa No.711, Phase III,
Adarsh Palm Treat,
Devarabeesanahalli,
Bengaluru560 103.
[By Sri. B. Siddeswara & Associates
Advocate]
V/s
Respondent/ Smt. Chowdamma,
Complainant: W/o Late Chandrappa,
Aged about 43 years,
D No.733/44, Sapthagiri Nilaya,
Near BESCOM Office,
Chowdeswari Layout,
Marathahalli,
Bengaluru560 037.
Also at:
Survey No.90/6, Munnekolala,
Outer Ring Road,
Marathahalli,
Bengaluru560 036.
(By KOSAdv.)
4 Crl.Appeal.No.25192/2019
C/W 25209/2019
JUDGMENT
The Appeal bearing Crl. Appeal.No.25192/2019 is preferred by the
Appellant/ Accused U/Sec. 374 of Cr.P.C, being aggrieved by the Judgment of conviction passed by the LVIII Addl. CMM, Bangalore, in CC.No.55968 of 2017, dtd.02.07.2019, convicting the Appellant for the offence punishable U/Sec. 138 of NI Act, thereby sentencing her to pay fine of Rs.87,05,000/, out of which Rs.87,00,000/ shall be paid as compensation to the Complainant, under Sec.357(1) of Cr.PC and Rs.5,000/ shall be paid to the State Exchequer as fine. In default, to pay the fine, the Accused shall undergo Simple Imprisonment for a period of three months, praying to setaside the Judgment of conviction.
The Appeal bearing Crl.Appeal.No.25209/2019 is preferred by the Appellant/ the Complainant U/Sec. 372 of Cr.P.C, being aggrieved by the Judgment of conviction passed by the LVIII Addl.
5 Crl.Appeal.No.25192/2019C/W 25209/2019 CMM, Bangalore, in CC.No.55968 of 2017, dtd.02.07.2019, convicting the Appellant for the offence punishable U/Sec. 138 of NI Act, thereby sentencing her to pay fine of Rs.87,05,000/, out of which Rs.87,00,000/ shall be paid as compensation to the Complainant, under Sec.357(1) of Cr.PC and Rs.5,000/ shall be paid to the State Exchequer as fine. In default, to pay the fine, the Accused shall undergo Simple Imprisonment for a period of three months, praying to award enhanced compensation.
2. The Brief facts leading to filing of the present appeals are:
The Complainant filed a Complaint U/Sec.200 of Cr.P.C. against the Accused alleging that, the Complainant was the tenant in the premises belonging to the Accused. Due to some difference inbetween the Accused and the Complainant, with the intervention of the persons, the Accused and the Complainant have arrived at a compromise by virtue of Memorandum of Understanding dtd.18.01.2017, wherein the Complainant shall be paid compensation 6 Crl.Appeal.No.25192/2019 C/W 25209/2019 of Rs.1,60,00,000/ by the Accused. Out of Rs.1,60,00,000/ an amount of Rs.80,00,000/ was given on the date of Memorandum of Understanding by way of Demand Draft bearing No.063859 dtd.09.01.2017 drawn on the Axis Bank Ltd. Further it was agreed that the balance amount of Rs.80,00,000/ shall be paid within three months from the date of Memorandum of Understanding or latest by 30.04.2017. Inorder to pay the balance amount of Rs.80,00,000/ the Accused issued three postdated cheques viz., Cheque No.639649 dtd.01.05.2017 for Rs.30,00,000/; Cheque No.636952 dtd.03.05.2017 for Rs.25,00,000/ and Cheque No.639651 dtd.06.05.2017 for Rs.25,00,000/, all the Cheques drawn on Bank of India, Jayanagar Branch. Further it was agreed that if the Accused fails to pay the balance amount of Rs.80,00,000/ on or before 30.04.2017. the said Cheques were to be presented on their respective dates. Further it was agreed under the Memorandum of Understanding that, if the Accused fails to pay the balance amount of Rs.80,00,000/, the Complainant 7 Crl.Appeal.No.25192/2019 C/W 25209/2019 will be entitled to recover the said amount, with the additional penality amount of Rs.80,00,000/, as damages together with 12% p.a. compound interest from 01.05.2017.
Since the Accused failed to pay the said amount, all the three Cheques were presented for there respective encashment, the said Cheques have been returned unencashed with an endorsement "Insufficient Funds" on 03.05.2017, 04.05.2017 and 08.05.2017, respectively. The Complainant has issued notice as required U/Sec. 138 of N.I. Act to the Accused on 15.05.2017 through RPAD and DTDC Courier. Since the Accused failed to comply the said notice, the Complainant was forced to file the Complaint before the Trial Court.
3. On being satisfied, the Trial Court has issued summons U/Sec.204 of Cr.P.C. to the Accused on 28.06.2017. The Accused appeared before the Trial Court on 11.09.2017 and she was enlarged on bail. Substance of accusation of the Accused was recorded by the Trial Court on 8 Crl.Appeal.No.25192/2019 C/W 25209/2019 11.09.2017, wherein the Accused pleads not guilty and claims to be tried.
4. The Complainant inorder to prove his case got himself examined as P.W.1 and got marked 21 documents as Ex.P.1 to Ex.P.21. PW1 was cross examined by the Learned Counsel for the Accused on behalf of the Accused on 25.04.2018, 27.08.2018, 24.09.2018 and 11.10.2018.
5. On 11.10.2018 statement of the Accused was recorded U/Sec. 313 of Cr.P.C. The Accused in defence got herself examined as DW.1 and got marked 15documents as Ex.D.1 to Ex.D.15. DW.1 was cross examined on behalf of the Complainant on 10.01.2019 and 16.02.2019. Accused got examined her witness by name Srinivas as DW.2. DW.2 was cross examined on behalf of the Accused on 22.04.2019.
The Trial Court heard both the sides and has recorded Judgment of Conviction against the 9 Crl.Appeal.No.25192/2019 C/W 25209/2019 Appellant. Hence, the Appellant is before this Court, being aggrieved by the said Judgment of conviction.
6. On filing the appeal by the Accused, this Court has suspended the sentence, under appeal for a period three months, initially on 31.07.2019. Notice of the Appeal memo and I.A.No.1 was issued to the Respondent and LCR were called for. Respondent setin his appearance in Crl.Appeal No.25192/2019 on 24.10.2019.
The Complainant has preferred an appeal at Crl. Appeal No.25209/2019 on 09.08.2019. Notice of appeal memo was issued to the Respondent. Respondent/ Accused appeared through her Counsel on 30.08.2019.
LCR were secured in Crl.Appeal No.25192/2019 on 30.08.2019. Since both the appeals are arising out of the Judgment passed in C.C.No.55968/2017, both the appeals were heard together and common Judgment is pronounced.
7. Heard the Learned Counsels for the Complainant and the Accused, respectively, on both 10 Crl.Appeal.No.25192/2019 C/W 25209/2019 the appeals. The Learned Counsel for the Appellant in Crl.A.No.25209/2019 has placed his reliance on two decisions reported in 2001 Crl.Law Judgment 950 (SC) and (2000) 4 SCC 75.
8. The Appellant in Crl.Apl.No.25192/2019 has preferred the appeal on the following grounds:
Grounds of Appeal:
a) The Trial Court has miserably failed to appreciate the oral and documentary evidence on record, in a proper and perspective manner;
b) The Trial Court has failed to consider that, the Cheques in question were not given by the Accused muchtheless towards discharge of any debts, as contended by him;
c) The Trial Court has failed to consider that, the cheques in question where issued, as security and the Complainant, by misusing the same, has filed the present Complaint;
d) The Trial Court has failed to arrive at a conclusion that, the Complainant has discharged his initial burden to avail the benefit of presumption, but the Accused has not rebutted the said presumption;
e) The Trial Court has failed to consider that, the Complainant has admitted in the evidence for having received Rs.1,15,00,000/ .11 Crl.Appeal.No.25192/2019
C/W 25209/2019
f) The Trial Court has failed to consider that, the Complainant has to pay rents to the Accused from March 2016 to Jan 2017, which comes to Rs.58,00,000/.
g) The Trial Court has failed to consider that, if the amount paid by the Accused to the Complainant and the amount of rent due from the Complainant is considered, the Accused need not pay any amount to the Complainant, inturn the Complainant need not have presented the cheques in question, for there encashment;
h) The approach of the Trial Court is against the sound principles of Criminal Jurisprudence, which will lead to disturbing the fair trial of the case and which has led to miscarriage of justice.
Hence, prayed to allow the said appeal.
9. The Appellant in Crl.Apl.No.25209/2019 has preferred the appeal on the following grounds:
Grounds of Appeal:
a) The Trial Court has miserably failed to appreciate the terms of the MOU executed by the Accused, undertaking in case of default to pay the balance amount of Rs.80,00,000/, to pay the same with 12% interest;12 Crl.Appeal.No.25192/2019
C/W 25209/2019
b) The Trial Court has failed to calculate the fine amount to the tune of Rs.87,00,000/, which includes Cheque amount of Rs.80,00,000/;
c) The Trial Court ought to have calculated the fine amount on the basis of the interest agreed by the Accused to be paid on her default;
Hence, prayed to allow the appeal by enhancing the fine amount, thereby enhancing the compensation amount.
10. Following points arise for my consideration;
1. Point No.1: Whether the Appellant/Accused in Crl.Apl.No.25192/2019 shows that the Order of Conviction and Sentence recorded by the Trial Court in C.C.No.55968/2017 dtd.02.07.2019, deserves to be setaside, and thereby call for the interference of this Court?
2. Point No.2: Whether the Appellant/ Complainant in Crl.Apl.No.25209/2019 shows that the Order of awarding fine and compensation by the Trial Court in C.C.No.55968/2017 dtd.02.07.2019, deserves to be enhanced?
3. What Order?
13 Crl.Appeal.No.25192/2019C/W 25209/2019
11. My finding on the above points are as under:
Point No.1 : Partly in the Affirmative; Point No.2 : In the Negative;
Point No.3 : As per final order for the following :
REASONS
12. Point No.1: The rank of parties will be referred as they were before the Trial Court.
The Complainant has filed a Complaint U/Sec. 200 of Cr.P.C. alleging that the Accused has committed an offence punishable U/Sec. 138 of N.I.Act, by issuing three Cheques as per Ex.P.4, Ex.P.5 and Ex.P.6, as the said Cheques have been returned unencashed with an Endorsement "Funds Insufficient" as per Ex.P.7 to Ex.P.9. On the basis of Ex.P.7 to Ex.P.9, the Complainant has issued a legal notice on 16.05.2017, as per Ex.P.10 to the Accused by RPAD and by Courier, as per Ex.P.11 to Ex.P.13.
14 Crl.Appeal.No.25192/2019C/W 25209/2019 On the basis of the said documents and the preliminary evidence led by the Complainant, the Trial Court has issued summons to the Accused U/Sec.204 of Cr.P.C., I do not find any error in the said order of the Trial Court.
13. On appearance of the Accused, substance of accusation was recorded on 11.09.2017. I have gone through the contents of the substance of accusation recorded by the Trial Court. I do not find any fault in the plea/substance of accusation recorded by the Trial Court.
14. On careful perusal of the evidence led by the Complainant, as well as the Accused, it is the case of the Complainant that he was a tenant under the landlordship of the Accused, inrespect of the premises which he had taken to run a hotel. The Complainant has developed the said premises by incurring huge expenses. Difference of opinion had arose inbetween the Complainant and the Accused, with the intervention of the well wishers, the Complainant and the Accused have arrived at a 15 Crl.Appeal.No.25192/2019 C/W 25209/2019 compromise as per the MOU dtd.18.01.2017. As per the MOU, the Accused had undertaken to pay compensation of Rs.1,60,00,000/ to the Complainant of which she had paid Rs.80,00,000/ on the day of MOU itself, by virtue of a draft bearing No.063859 dtd.09.01.2017. Further the Accused has undertaken to pay Rs.80,00,000/ within three months or on or before 30.04.2017 and had issued three postdated Cheques, as per Ex.P.4 to Ex.P.6, with an understanding that, if she fails to pay the balance amount, those Cheques are to be presented on there respective dates. Further the Accused has undertaken to pay 12% p.a. compound interest, to the Complainant from 01.05.2017, in the event of failure on her part to pay the balance amount. Accordingly, when the Accused failed to pay the balance amount of Rs.80,00,000/, the Complainant presented the said Cheques for there encashment, which have returned unencashed. Inspite of bringing to the knowledge of the Accused, she has failed to pay the amount covered under the said Cheques.
16 Crl.Appeal.No.25192/2019C/W 25209/2019 Per contra, the Accused contends that, she has not issued the Cheques Ex.P.4 to Ex.P.6 towards discharge of any debts as contended by the Complainant, but the said Cheques were issued towards the security which the Complainant has misused the same. Further the Accused contends that, she has paid Rs.1,15,00,000/ to the Complainant, as admitted by him. Further the Complainant had to pay the rents to her from March 2016 to Jan. 2017, which comes to Rs.58,00,000/, if this is considered then, she has totally paid an amount of Rs.1,73,00,000/. Thus, there was no necessity for the Complainant to present the Cheques Ex.P.4 to Ex.P.6 for there encashment, the Complainant has totally misused the said Cheques.
15. Coming to the ocular evidence, more specifically cross examination of DW.1, at Page No.3, Para No.5, Line Nos.2 to 6, which reads as under:
"....... ನಪ4 ರರದ 6 ಚಕ ಗಳಳ ಬಬರಕ ಆಫ ಇರಡಯ, ಜಯನಗರ ಶಖಯ ಚಕ ಎರದರ ಸರ. ಅದದ ರದತ ಅವಗಳಲರಳವ ಸಹ ಸಹ ನನನದದ.
ಫಯರದಗ ರರ.1 ಕರದಟ 60 ಲಕ ಕರಡಳವದಗ 17 Crl.Appeal.No.25192/2019 C/W 25209/2019 ಚಕ ಕರಟಟರಳತತದನ. ನನಳ ಹಣ ಕರಟಟ ನರತರ ಆ ಚಕ ನಳ ಸ ಕರಡಬದಕರದಳ ಹದಳದ. ನರತರ ನ ವಪಸಳ ಫಯರದಗ ಹಣ ಕರಟಟರಳವದಲಲ. ...."
As per this evidence, the Accused admits that, Ex.P.4 to Ex.P.6 Cheques pertains to her bank account with Bank of India, Jayanagar Branch. Signatures found on the said Cheques is that of her. She had issued the said Cheques towards payment of Rs.1,60,00,000/ with an understanding that the Complainant has to return the said Cheques on payment of the said amount, but the Complainant has failed to return the said Cheques.
Thus this evidence goes to show that the Accused admits that the ChequesEx.P.4 to Ex.P6 Cheques in question, belong to her and the signatures on the said cheques also belongs to her.
16. Thus the Complainant has proved the initial burden casted upon him U/Sec.138 of N.I. Act, to say that the Cheques are issued by the Accused.
17. On viewing the amount of oral evidence with Ex.P.1 to Ex.P.15, which will suffice the 18 Crl.Appeal.No.25192/2019 C/W 25209/2019 Complainant to have benefit of presumption available U/Sec.138, 139 of N.I.Act. As per the trite principle of law, dealing with the presumption U/Sec.138 & 139 of N.I.Act and as per the dictum laid down by the Hon'ble Apex Court in the case of K. Subramani V/s K. Damodara Naidu, reported in 2014 (12) SCALE 677, as well as in the case reported in (2010) 11 SCC 441, wherein it is held that, "presumption U/Sec.139 of N.I.Act accrues to the benefit of the Complainant, unless the Accused rebut that presumption".
Now it is for the Accused to rebut the said presumption, available to the Complainant U/Sec.139 of N.I.Act.
18. On close perusal of cross examination done to PW1 and the evidence of DW1, it can be said that, the Accused has denied issuance of the ChequesEx.P4 to Ex.P6 to the Complainant towards repayment of the amount of Rs.80,00,000/ and has specifically taken up a stand in her defence, to rebut 19 Crl.Appeal.No.25192/2019 C/W 25209/2019 the presumption available to the Complainant U/Sec.138 and 139, contending that she had issued three Cheques, as security infavour of the Complainant and she had paid the entire amount, on receipt of the entire amount, the Complainant has misused the said Cheques by filing the present Complaint.
19. It is the specific contention of the Complainant that, he and the Accused had entered into a Memorandum of Understanding on 18.01.2017. The said MOU is produced by the Complainant at Ex.P.3. On careful perusal of the said document, it can be said that, the lease period inrespect of the premises belonging to the Accused, which the Complainant has taken on lease, as per Ex.P.2 was a period of 10years, commencing from 01.12.2009 to 31.11.2019. The Complainant and the Accused have come to an understanding that, the Complainant has to surrender the lease to the Accused, inturn the Accused has to pay a sum of Rs.1,60,00,000/ towards compensation and 20 Crl.Appeal.No.25192/2019 C/W 25209/2019 developments made by the Complainant to the premises belonging to the Accused. Accordingly, they have undertaken to do so. Further as per Clause No.3 of the said document, it can be said that, the Accused has paid an amount of Rs.80,00,000/ by way of Demand Draft bearing No.063859 dtd.09.01.2017 drawn on the Axis Bank Ltd., infavour of the Complainant towards part payment of the total amount of Rs.1,60,00,000/.
Further as per Clause5 of the said document, it can be seen that, since there was no proper security in the form of landed property, the Accused has extended security for payment of remaining balance of Rs.80,00,000/ by way of Cheques Ex.P.4 to Ex.P.6. And undertaken to repay the said balance amount of Rs.80,00,000/ within a period of three months from the date of MOU and in the event of her default, the Complainant has to present the said Cheques when it fell due.
On coming to the ocular evidence on this point, more specifically cross examination of PW.1, at Page 21 Crl.Appeal.No.25192/2019 C/W 25209/2019 No.1, Para No.2, Line Nos.4 and 5, which reads as under:
"...... ಕರರಳ ಪತ ತದರತ ನನಗ ಅಪಧತರಳ ರರ.80 ಲಕಗಳನಳ ನ ಪವತ ಮಡರಳತತರರದರ ಸರ. ....."
As per this evidence, the Complainant admits that, he has received Rs.80,00,000/ as per the terms of MOU.
As per these documentary and ocular evidence, it can be said that, it is an undisputed fact from both the sides that, the Accused has paid an amount of Rs.80,00,000/ to the Complainant.
20. Further the Accused contends that, at the time of surrender of the lease by the Complainant on 18.01.2017 she has paid an amount of Rs.35,00,000/ to the Complainant. The Accused has produced registered Surrender Deed dtd.18.01.2017 at Ex.D.4. On perusal of the said document, it can be said that the Complainant has surrendered the lease of the premises to the Accused and inturn the Accused has refunded the security 22 Crl.Appeal.No.25192/2019 C/W 25209/2019 deposit amount of Rs.35,00,000/ to the Complainant.
On coming to the ocular evidence on this point, more specifically cross examination of PW.1, at Page No.4, Para No.6, Line Nos.6 to 10, which reads as under:
"...... ಆ ದಖಲಯ ಪ ಪಕರ ನನಳ ರರ.35 ಲಕವನಳ ನ ಅಪಧತರರದ ಪಡದಳಕರರಡದ ಎರದರ ಭದಪತಗಗ ಪಡದಳಕರರಡದ ಎರದಳ ಉತತಗಸರಳತತರ. ಒಟಟಗ ರರ. 1 ಕರದಟ 15 ಲಕ ಪಡದಳಕರರಡದ ಎರದರ ರರ.35 ಲಕ ಭದಪತಯ ಹಣವನಳನ ಸದರತಳತ ಮತಳತ ನನಳ ರರ.80 ಲಕವನಳನ ಪಡದಳಕರರಡರಳತತದನರದರ ನಳಡಯಳತತರ. ...."
As per this evidence, the Complainant admits that, he has received Rs.35,00,000/ from the Accused, but as a security deposit. Totally he has received Rs.1,15,00,000/.
Thus, as per these documentary and ocular evidence, it can be said that, the Accused has totally paid an amount of Rs.1,15,00,000/ to the Complainant. This aspect has not been considered by the Trial Court.
23 Crl.Appeal.No.25192/2019C/W 25209/2019
21. Further the Accused contends that, the Complainant has to pay rents to her from March 2016 to Jan. 2017.
As per Clause4 of Ex.P.3 MOU dtd.18.01.2017, the Accused has taken the physical Possession of the premises having been fully satisfied with its condition on 18.01.2017.
Further as per Clause2 of Ex.P.3MOU dtd.18.01.2017, there is a recital that the Complainant has stopped running his business and ongoing renovation work since 01.08.2016.
Further as per Clause9 of Ex.P.3MOU dtd.18.01.2017, there is a recital that there are no any arrears of rent and TDS or electricity Bill from the Complainant.
These Clauses goes to show that the Complainant has stopped running his business from 01.08.2016, he has handed over the Possession of the premises on 18.01.2017 to the Accused, and the Accused has declared that there is no any arrears of rents to be cleared by the Complainant.
24 Crl.Appeal.No.25192/2019C/W 25209/2019 Though the Accused contends that there is arrears of rent from March 2016 to Jan. 2017, the Accused has not produced any documents. The documents produced by the Accused at Ex.D.3, will not suffice the claim made by her, in view of her declaration under Clause9 of Ex.P.3MOU dtd.18.01.2017.
Coming to the ocular evidence on this point, more specifically cross examination of PW.1, at Page No.4, Para No.6, Line Nos.1 to 6, which read as under: "ಬರದಗಬ ಕರರಳ ಪತ ತದ ಪ ಪಕರ ನವ ಪ ಪತ ತರಗಳಳ 10 ನದ ತರದಖಳ ಫಯರದ ಬಡಗ ಪವತ ಮಡಬದಕರದರ ಸರ. ಸದರ ಬಡಗಯನಳ ನ ನನಳ ಚಕ ನ ಮರಲಕ ಪವತ ಮಡಳತತದ. 2015 ರರದ 2017 ರವರಗ ಬಡಗಯನಳ ನ ಪವತ ಮಡದದರ ಎರದರ 2016 ರಲ ನನಳ ಆಪಧತರ ಕಟಟಡದರದ ಬಡಗರನಗ ಬಟಟದ ಎರದಳ ನಳಡಯಳತತರ. ದ.18.01.2017 ರರದಳ ಸರರಡರ ಲದಸ ನನಳ ಆಪಧತರನಳ ನ ಭದಟಯಗದ ಎರದರ ಸರಯಲಲ. ......"
As per this evidence, Complainant admits that he was required to pay the rents to the Accused on or before 10th every month as per the terms of the lease agreementEx.P.2. But contends that he has 25 Crl.Appeal.No.25192/2019 C/W 25209/2019 paid the said rents from 2015 to 2017 till surrender of the lease.
Thus, on the basis of the ocular and documentary evidence, it can be said that, though the Accused has taken up a contention that, the Complainant has failed to pay the rents to her, but she has failed to prove the same. On the contrary, she had declared as per Ex.P.3 Clause9 that no any arrears of rents were to be received by her from the Complainant, as on the date of MOU dtd.18.01.2017 Ex.P.3.
22. Further the Accused contends that, the said Cheques Ex.P.4 to Ex.P.6 were issued by her as security towards balance amount of Rs.80,00,000/ to the Complainant.
As per Clause5 of the Ex.P.3MOU dtd.18.01.2017, there is a recital that Ex.P.4 to Ex.P.6 Cheques were issued by the Accused as security for repayment of balance amount of Rs.80,00,000/ as there was no other security in the form of landed property.
26 Crl.Appeal.No.25192/2019C/W 25209/2019 Coming to the ocular evidence on this point more specifically cross examination of PW.1, at Page No.3, Para No.5, Line Nos.5 and 6, which reads as under: "...... ನರತರ ನನಳ ನನನ ಉದಶಕಕಗ ಎರಒ ನ ತಯಗಸದ ಎರದರ ಸರಯಲಲ. ..."
ಯಳನಳ As per this evidence, the Complainant denies that Ex.P.4 to Ex.P.6Cheques were issued as security for repayment of balance amount of Rs.80,00,000/, which is stated in Ex.P.3MOU.
As per Clause5 of Ex.P.3MOU dtd.18.01.2017 there is a recital that, in case of nonpayment of all dues by the Accused to the Complainant, the Complainant is having a right to present the Cheques on the day when it fell due and take the balance amount due.
As already discussed above, the Accused was to pay totally an amount of Rs.1,60,00,000/ to the Complainant under Ex.P.3MOU dtd.18.01.2017, out of which she has paid an amount of Rs.80,00,000/ on the said day, under the said MOU. The Accused has further paid an amount of Rs.35,00,000/ to the 27 Crl.Appeal.No.25192/2019 C/W 25209/2019 Complainant under registered Surrender of Lease dtd.18.01.2017Ex.D.4. Totally Accused has paid an amount of Rs.1,15,00,000/ to the Complainant. The Accused has to pay further amount of Rs.45,00,000/ to the Complainant.
When the Complainant has initiated his rights available to him under Clause5 of Ex.P.3MOU dtd.18.01.2017, due to failure on the part of the Accused to repay the balance amount, the Cheques have returned unencashed as per Ex.P.7 to Ex.P.9. And on issuing the notice by the Complainant to the Accused as per Ex.P.10, the Accused has failed to repay the said balance amount of Rs.45,00,000/. Thus, dishonour of the Cheques issued by the Accused, attracts the provisions of 138 of N.I. Act. Rightly the Trial Court has considered that, the Accused has committed an offence punishable U/Sec. 138 of N.I. Act.
28 Crl.Appeal.No.25192/2019C/W 25209/2019
23. All the evidence both oral and documentary, goes to show that, the Complainant has initially proved that the Cheques in question have been issued by the Accused, for the legally recoverable debt. Hence, I do not find any force in the submission of the Learned Counsel for the Appellant/ Accused, to disbelieve it. Hence the same is discarded.
24. Considering the inconsistent contentions raised by the Accused in the cross examination of PW1 and in her evidence as DW.1, cumulatively, it can be said that, the stand taken up by the Accused, is not fortified with cogent evidence, on the basis of preponderance of probabilities, inorder to rebut the presumption available to the Complainant, U/Sec 139 of NI Act. So, in the absence of material evidence, the different and distinct stands, taken up by the Accused, cannot be accepted at all.
25. Thus for the various inconsistent stands takenup by the Accused, no any cogent evidence is 29 Crl.Appeal.No.25192/2019 C/W 25209/2019 putforth by her, to strengthen her defence. On the contrary, she has taken altogether distinct and different stands, which are contradictory to each other, as placed on record. Hence, presumption available to the Complainant U/Sec.139 of N.I.Act stands unrebutted. I have gone through the Judgment of the Trial Court, rightly the Trial Court has concluded that the Accused has failed to rebut the presumption available to the Complainant U/Sec.139 of N.I.Act.
26. Under these circumstances, there is no any hurdle to derive the presumption available to the holder of the cheque U/Sec.118 as well as 139 of N.I.Act. I find force to my above opinion as per the decision of Hon'ble Apex Court in the case of Hiten Pidalal V.s Bratindranath Banergi reported in 2001 Crl.L.J. 4647 (Supreme Court) as well as in the case of M.S.Narayan Menon @ Mani V/s State of Kerala and Another reported in 2006 SAR.Crl.616 and in the case of Krishna Janardhan Bhat V/s Dattatreya G. 30 Crl.Appeal.No.25192/2019 C/W 25209/2019 Hegde reported in (2008)2 SCC Crl. 166. Rightly, the Trial Court has considered all these aspect and there is no any fault on the part of the Trial Court. I do not find any force in the submission of the learned counsel for the Appellant.
27. Further 313 Statement is recorded by the Trial Court on 11.10.2018, it covers the entire incriminating substance, brought on record by way of evidence, against the Accused. The Trial Court has examined the Accused U/Sec. 313 of Cr.P.C. I have gone through the statement of the Accused recorded by the Trial Court U/Sec. 313 of Cr.P.C., and reply given by the Accused, to the said questions, in the statement. I do not find any fault in the statement of the Accused, recorded by Trial Court U/Sec 313 of Cr.P.C.
28. I have carefully gone through the reasoning given by the Trial Court, while awarding compensation to the Complainant U/Sec.357 of Cr.P.C. The Trial Court has not considered payments made by the Accused to the Complainant to the tune 31 Crl.Appeal.No.25192/2019 C/W 25209/2019 of Rs.1,15,00,000/, as discussed supra. Further the Trial Court on considering the balance amount of Rs.80,00,000/ tobe paid by the Accused to the Complainant, the Trial Court has awarded fine amount of Rs.80,00,000/.
Further the Trial Court has awarded interest on the said amount to the tune of Rs.7,00,000/.
If the amount already paid by the Accused to the Complainant to the tune of Rs.1,15,00,000/, is taken into account, then the Accused will have to pay an amount of Rs.45,00,000/ to the Complainant towards balance amount, as agreed under Ex.P3 MOU dtd.18.01.2017.
As per Clause7 of Ex.P3MOU dtd.18.01.2017, the Accused had undertaken to pay 12% compound interest per annum from 01.05.2017, in the event of her failure to pay the balance amount to the Complainant. Considering the said recitals and considering the prevailing rate of interest, this Court has calculated the interest, to the tune of Rs.3,71,250/, which the Complainant will be entitled to receive on the balance amount of 32 Crl.Appeal.No.25192/2019 C/W 25209/2019 Rs.45,00,000/. So considering above aspects, the fine amount to be awarded by the Trial Court will be Rs.48,76,250/, out of which an amount of Rs.48,71,250/, shall be paid to the Complainant, as compensation U/Sec 357(1) of Cr.PC., and Rs.5,000/ shall be paid to the State Exchequer, as fine, instead of awarding Rs.87,05,000/, as fine and directing to pay an amount of Rs.87,00,000/, as compensation to the Complainant. I find support for the calculation of the compensation as calculated above, on the basis of the guiding principles laid down by the Hon'ble Apex Court, in the case of Harisingh V/s Sukhbir Singh reported in (1988) 4 SCC 551, as well as in the case of Suginthi Suresh Kumar V/s Jagadishan reported in 2002 Crl.L.J. 1003 (Supreme Court).
The Complainant/Appellant in Crl.Appeal No.25209/2019 has placed his reliance on the decision reported in 2001 Crl.L.J 950(SC), wherein it is held that: "whenever a Magistrate of first class feels that, the Complainant should 33 Crl.Appeal.No.25192/2019 C/W 25209/2019 be compensated, he can after imposing a term of imprisonment, award compensation to the Complainant, for which no limit is prescribed U/Sec 357 of Cr.PC."
Further the Learned Counsel for the Appellant in Crl.Appeal No.25209/2019 has placed his decision reported in (2000) 4 SCC 75, wherein it is held that:
"recourse to proviso can be add only for special and adequate reasons and not in a casual manner. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which its stands as a proviso, particularly in such like penal provisions."
The Complainant in Crl.Appeal No.25209/2018 has not made out the special grounds or the special circumstances or the adequate reasons, to award more fine inturn more compensation then to be awarded, as per the guiding principles laid down by the Hon'ble Apex Court. I do not find any force in the submission placed by the Learned Counsel for the Complainant/Appellant in 34 Crl.Appeal.No.25192/2019 C/W 25209/2019 Crl.Appeal No.25209/2019, that in this particular case, the fine amount inturn the compensation to be awarded to the Complainant U/Sec 357 of Cr.PC, is to be enhance. On the other hand considering the payments made by the Accused to the Complainant, which even the Complainant had admitted, as discussed above, the Complainant will not be entitled for the compensation, awarded by the Trial Court, but will be entitled for the compensation, as discussed by this Court, supra.
Thus, the sentence passed by the Trial Court on convicting the Accused requires tobe modified U/Sec 386(b)(iii) of Cr.PC.,
29. Further inorder to conclude, the Hon'ble High Court has held in General Auto Sales Vs Vijayalakshmi, reported in 2005(1) KLT 478 in Paragraph No 8 thereof, that:
"Even if a blank signed cheque has been given towards liability or even as security, then the liability subsists and quantified, if the cheque is filled up and presented to the Bank, the person who had drawn the cheque, cannot avoid the 35 Crl.Appeal.No.25192/2019 C/W 25209/2019 criminal liability under Section 138 of NI Act".
Further the Hon'ble Apex Court has held in Rangappa Vs Sri Mohan, reported in (2010) 11 SCC 441, that;
"once issuance of cheque and signature thereon are admitted, presumption of a legally enforceable debt infavour of the holder of the cheque arises. It is for the Accused to rebut the said presumption, though Accused need not adduce his own evidence and can rely upon the material submitted by the Complainant. However, mere statement of the Accused may not be sufficient to rebut the said presumption".
30. In this case there was really presumption available infavour of the Complainant in terms of Section 138 & 139 of Negotiable Instruments Act, against the accused and the accused has not discharged his burden to rebut that presumption.
31. The Court below has considered all the aspects, the grounds taken up by the Accused as defence. The Order of the Trial Court in awarding 36 Crl.Appeal.No.25192/2019 C/W 25209/2019 compensation to the Complainant is required to be modified and the said compensation is to be awarded out of fine amount. When no fault is committed by the Trial Court, in coming to the conclusion, convicting the Accused for the offences punishable U/Sec 138 of NI Act, interference to that effect by this Court does not arise at all. Thus, I am declined to interfere with the findings recorded by the Trial Court, subject to modifications, withregard to fine and compensation, as stated above.
32. Necessarily the prosecution succeeds. The conviction is therefore confirmed, as the accused is found guilty of the offence punishable under Section 138 of Negotiable Instruments Act.
Hence, for the above reasons I answer point No.1 Partly in the Affirmative and Point No.2 in the Negative.
33. Point No.3: For the aforesaid reasons, I proceed to pass the following:
37 Crl.Appeal.No.25192/2019C/W 25209/2019 ORDER Acting U/Sec.386(b)(iii) of Cr.P.C., the Appeal preferred by the Appellant/Accused in Cr.Appeal No.25192/2019, is hereby Partly Allowed.
Acting U/Sec.386 R/W Sec 374 of Cr.P.C., the Appeal preferred by the Appellant/ Complainant in Cr.Appeal No.25209/2019, is hereby Dismissed.
In the consequences, the order of conviction passed by the Learned LVIII Addl. CMM, Bengaluru in C.C.No.55968/2017 dtd 02.07.2019, recording conviction of the Accused, is hereby confirmed, subject to the modification that, the Accused shall pay fine of Rs.48,76,250/. Out of which an amount of Rs.48,71,250/, shall be paid as compensation to the Complainant U/Sec 357(1) of Cr.PC., and Rs.5,000/, shall be paid to the State ExChequer, as fine.
In default of payment of fine amount, the Accused shall undergo Simple Imprisonment for a period of three months.38 Crl.Appeal.No.25192/2019
C/W 25209/2019 The order of suspension passed by this Court U/Sec.389 of Cr.P.C. stands revoked.
The Court below shall execute its order, as per law.
No order as to costs.
In case, if the Accused has deposited the amount, as directed U/Sec. 148 of N.I. Act, the same may be dealt with, as per Law U/Sec. 143 of the said Act.
Original copy of this Judgment is to be kept in Crl.Appeal No.25192 of 2019 and one true copy of the same, is to be kept in Crl.Appeal.No.25209 of 2019.
Remit the LCR to the Court below, on obtaining necessary acknowledgement, from it, alongwith the copy of this Judgment.
(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me, in the open court on this the 11th day of February, 2020.) [AbdulRahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)