Bangalore District Court
Vasundhara Builders vs No. 298/A on 28 January, 2021
IN THE COURT OF THE LXII ADDL.CITY CIVIL
& SESSIONS JUDGE, BENGALURU
Dated this the 28 th day of January, 2021
PRESENT
SRI. R. ONKARAPPA, B.Sc,L.L.B.,
LXII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU (CCH-63)
Crl. Appeal No. 262/2018
APPELLANT:/ Vasundhara Builders,
ACCUSED No. 298/A, New No. 28,
9th Main, 7th Cross,
Sri. Ram Mugali road,
Hanumantha Nagara,
Bengaluru-560 019
Rep. By its Proprietor
Sri. Anil G. Manakame
(By Shivalingaraju K.N.
Advocate)
-Vs-
RESPONDENT :/ M/s S. P. Electricals,
COMPLAINANT No. 43, Siddappa complex, Nagarabhavi main road, Moodalapalya, Bengaluru-560 072 Rep. By its Proprietor Sri. Harish J.R. S/o Jayaramaiah, Aged about 38 years (By K.R, Advocate) JU DG M E NT The present criminal appeal has preferred by the appellant /accused under Section 374(3) of Cr.P.C against 2 Crl.A. 262/2018 the Judgment dated 20.01.2018 passed by the learned XII Addl. Chief Metropolitan Magistrate, Bengaluru in C.C.No. 9424/2017, 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. 5,80,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for ten months. Further, out of the said fine amount of Rs. 5,75,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C. and remaining an amount of Rs. 5,000/- shall be remitted to the state as fine.
2 The factual matrix of this appeal are that, the complainant has been doing the business in the field of supplying the Electrical components to the needy and in the course of the same, the accused being one of the customers, approached and requested the complainant to supply the goods in accordance with the requirement more fully mentioned in the invoices. And accordingly the complainant supplied same to the accused worth of Rs. 5,34,742/- and the same came to be acknowledged the receipt of the same under various invoices dated 17.12.2015, 19.12.2015, 3 Crl.A. 262/2018 08.12.2015, 29.01.2016, 30.01.2016, 05.02.2016, 09.02.2016, 11.02.2016 and 12.02.2016. To discharge and clear the said debt the accused has issued the cheque bearing No.057161 dated 05.05.2016 for a sum of Rs. 5 lakhs drawn on M. Vishveshwaraiah cooperative bank limited, Shankarmath, Bengaluru in favor of the complainant. After presenting the said cheque for cash, the same cheque was returned as dishonoured with the shara "funds insufficient". Hence the complainant issued a demand notice against to the accused and tendered him to pay the amount covered under the same cheque. Despite of the same, the accused neither replied to the said notice nor paid the amount covered under the cheque. Hence the complainant filed the complaint for the offence punishable under section 138 of N.I. Act. After recorded the sworn statement of the petitioner, Criminal case has been registered as Criminal Case No. 9424/2017. Subsequently summons had issued against the accused, the accused appeared before the trial court and contested the matter. To prove the guilt of the accused, the complainant examined himself as P.W.1 and got marked the documents at Ex.P1 to 4 Crl.A. 262/2018 Ex.P5. To substantiate his defence, the accused not lead any defence evidence nor produced any documents. The trial court after hearing the counsel for the accused and considering 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 as aforesaid. 3 Being aggrieved by the Judgment passed by the Trial Court, the accused preferred this appeal urging many more grounds. That the impugned order is highly erroneous and against to the principles of Natural Justice. There is no evidence on record to convict the appellant. Trial Court has not followed proper procedure and this has resulted into miscarriage of justice. The Trial Court has failed to consider the merits on record in a judicious manner. The findings arrived by the learned Trial Court are not supported by the evidence on record. The Trial Court not yet to be considered Ex.P5 documents are given to whom. Also failed to consider how many persons or proprietor have the appellant builders. The trial Court has not gave a sufficient time to the accused before closing the defence evidence, though the appellant has submitted that he has evidence to defend himself. The 5 Crl.A. 262/2018 Trial Judge failed to appreciate the oral and documentary evidence in its proper perspective and all other grounds the appellant sought for set aside and quashed the judgment of the Trial Court. The same grounds are herein urged by the appellant has to be taken for common discussion to avoid the repetition.
4 The notice has been served on the respondent, the respondent appeared through his counsel. The Trial Court records have been secured.
5 Heard arguments on both sides. Perused the records.
6 The points that arise for my determination is:
1. Is there any irregularities in the impugned judgment passed by the learned Magistrate in CC No. 9424/2017?
2. Whether the complainant established that the disputed cheque has been issued by the accused for repayment of amount?
3. Whether the trial court has committed any error in law or in fact in convicting the accused?
7 My findings to the above point is as under:-
POINT No.1 :- In the Affirmative.
6 Crl.A. 262/2018 POINT No.2 & 3 :- Does not survive for the following:-
R E A SON S 8 POINT No. 1:- For the sake of convenience, the parties are referred to as per their litigative status of the trial court. The appellant is the accused and respondent is the complainant as per their original ranks before trial Court.
9 Main ground of the learned counsel for the accused before this Court is that the learned trial judge failed to appreciate the evidence available on record. Debt or liability not established. No cogent evidence for due amount.
Alleged charges not proved. If the cheque was drawn by the accused without accepting liability of another in writing it would not attract section 138 of N.I. Act. No witness produce to prove debt or liability.
10 Further ground and submission made by the learned counsel for the accused is that the learned Magistrate has failed to gave a sufficient opportunity to the accused to cross examined the PW1 and also to lead his defence evidence and pleased to close the immediately after recording evidence of PW1 and marking the document on his 7 Crl.A. 262/2018 behalf. He further urged many more other ground, in his appeal memo and in his oral submission. On the other hand learned counsel for the complainant vehemently argued, despite maximum opportunity had granted by the Trial Judge to the accused for cross examine the PW1, the accused purposefully and intentionally failed to make use of opportunity and failed to cross examined the PW1 and further submission of the learned Counsel for the complainant is that if the case is remand for fresh disposal as contended by the learned Counsel for the accused it consume more time and very purpose and wisdom of act would defeated. As such he sought for dismissal of the appeal.
11 Since the accused/appellant made a submission that the learned Trial Judge failed to gave sufficient opportunity to cross examined the PW1. Though the question of law raised by the learned counsel for the accused/appellant. I have heard the appeal both on facts and law. Therefore, it is my sincere opinion that, if once appeal sustained under the law before this court, point No. 2 and 3 is herein framed survive for my further consideration, 8 Crl.A. 262/2018 otherwise point No. 2 and 3 does not survive. As such I have taken up the case firstly upon question of law.
12 Law is cleared by the Hon'ble Supreme Court of India in Crl. A. No. 546/2011 M.B. Sukurali Vs State of Assam. Whether the learned Trial Judge compel the procedure as per the law laid down by the Hon'ble Supreme Court of India held in Crl. A. No. 546/2011 is the question raise before me. To that affect before I advert with the facts available on the case records I take up the present case with this issue. As such it is necessary me to extract the guidelines given by the Hon'ble Supreme Court of India here in to dispose this case.
We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused. This is because 9 Crl.A. 262/2018 liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the 'heart and soul' of the fundamental rights.
13 When compare the guidelines given by the Hon'ble Supreme Court of India with the facts available on records, one can finds on trial Court record that, on 30.11.2017 PW1 was present. Accused and his counsel was kept absent, as such the learned Trial Judge passed an order of cross examination of PW1 taken as nil and put the record for recording the statement under section 313 CrPC. The accused statement under section 313 of CrPC have also been recorded. From this one point is evident that the chief of PW1 remains as unchallenged before the Trial Court. Further trial court have not made any efforts to secure the accused before the court by issuing further mode of process other than to the non bailable warrant. Despite the learned trial judge passed a conviction judgment same lacuna is not sustainable under law in view of the dictum of the supreme 10 Crl.A. 262/2018 court. Hence on face of record seen to the naked eyes, that the trial court, failed to provide an opportunity to cross examined the PW1 and learned trial court also have not made any opportunity to an accused to appoint new counsel or appoint any amicus curie on behalf of the accused. Hon'ble Supreme Court of India observed that an opportunity to the accused to appoint new counsel or appoint any amicus curie on behalf of the accused and make opportunity to explain the accusation made against to the accused is the fundamental and basic principles of the criminal law of justice. Case on records speaks that the very basic principles of criminal law justice observed by the Honble supreme court have not been followed by the learned trial judge. When compare the submission made by the complainant against to grant an one more opportunity to the accused to explain the accusation made against the accused is paramount consideration. These are all the infirmities seen on impugned judgment to a naked eyes, same are all invented me to interfere on the impugned judgment without adverting and discuss the merits of the case. Therefore, I am 11 Crl.A. 262/2018 of the opinion that in view of the guidelines of the Hon'ble Supreme court the case is need to remand for fresh disposal. 14 It is true, once the matter remanded for fresh disposal as sought by the accused it consume some sort of precious time. Alone that ground, it cannot to be denied the valuable rights of the accused to establish his defence. Even without giving a sufficient opportunity to the accused it cannot to be expect dislodge the presumption on side of the accused. The very apprehension of the complainant that if an order, ordered to fresh disposal of the matter, it consume a valuable time of the court and the accused may chance to dodge the proceeding before the trial court, same all can be prevented and exchecked by impose certain conditions to safeguard the interest of the complainant, thereby I answer point No.1 in the Affirmative. In view of answered the point No. 1 in the affirmative, answering No. 2 and 3 does not survive. Hence, I proceed to pass the following:
OR D E R The Criminal Appeal filed under Section 374(3) of Cr.P.C. is hereby allowed subject to cost of Rs. 2,000/-. The Judgment and sentence passed by the trial court in CC No. 12 Crl.A. 262/2018 9424/2017 dated 20.01.2018 is hereby set aside and order to remand for fresh disposal, subject to following conditions;
1. The accused/appellant and the complainant/respondent shall appear before the trial court within 10 days from the date of receipt of copy of this judgment without waiting for any process of the trial court.
2. The trial court shall adjudicate the matter on day to day basis that too shall make an endevour to disposal of the case file within 2 months from the receipt of copy of this judgment.
3. Office is hereby directed to send the record immediately to the Trial Court and shall obtain acknowledgement from the Trial Court within 10 days.
(Dictated to the Stenographer, transcribed and typed by her and then corrected and pronounced by me in the open court on this the 28 th day of January, 2021).
sd/-
(R. ONKARAPPA) LXII Addl. C.C. & Sessions Judge, BANGALORE CITY.
13 Crl.A. 262/2018