Bangalore District Court
Mr.Nagesh.D vs S/O B.Durgoji Rao on 16 May, 2022
1 Crl.A.No.2650/2019
IN THE COURT OF THE LIX ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-60) AT BENGALURU
Dated this the 16th day of May, 2022
-: P R E S E N T :-
Sri.SADANANDA NAGAPPA NAIK B.A.L, L.L.B.,
LIX ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-60, BENGALURU CITY.
CRIMINAL APPEAL No.2650/2019
BETWEEN:-
APPELLANT/ : Mr.NAGESH.D,
ACCUSED S/o B.Durgoji Rao,
Aged about 43 years,
R/at No.A-125/1,
PWD Quarters,
Jeevanbheema Nagar,
Bangalore - 560 075.
(By Sri. Manjunath.C.G., Adv.)
V/s.
RESPONDENT/ : Mr.DEVE GOWDA,
COMPLAINANT S/o.Doddalinge Gowda,
Aged about 67 years,
R/at No.571, 3rd Cross,
M.M.Layout, Kavalbyrasandra,
R.T.Nagar Post,
Bangalore - 560 032.
(By Sri.N.Dinakar & Associates,
Adv.)
JUDGMENT
Appellant has filed this appeal U/s.374(3) of Cr.P.C., being aggrieved by the judgment of conviction and order 2 Crl.A.No.2650/2019 of sentence passed in C.C.No.16904/2016 dated 28.08.2019 on the file of XV Additional and Addl. Chief Metropolitan Magistrate, Bengaluru (hereinafter referred as impugned judgment and order).
2. Parties to this appeal shall be referred 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 has submitted that respondent is a stranger to the appellant and there is no transaction between the appellant and the respondent but cheque belongs to the appellant and also there is no dispute in signature in cheque. The appellant and one Ramakrishna are friends. Appellant borrowed the hand loan of Rs.1 lakh @ interest of 4% per month from Ramakrishna Gowda during financial difficulties. During the time of borrowing the hand loan from Ramakrishna Gowda, appellant handed over the blank cheque with his signature as security. After lapse of sometime, the appellant has repaid the entire amount to said Ramakrishna Gowda and he requested him to return his cheque but he replied that the cheque was missing amongst other documents in his house and agreed to return soon but did not return. The cheque has been misutilized by the respondent and got filed this 3 Crl.A.No.2650/2019 false complaint. The Impugned judgment of conviction and order of sentence is perverse. For the aforesaid reasons, appellant has prayed to interfere with 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 passed by the trial court in C.C.No.16904/2016.
5. Respondent appeared through his counsel. Heard the arguments of both counsels .T.C.R. were called for reference in this appeal.
6. Now, following are the points arising for determination:
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?
2. Whether interference of this court is necessitated?
3. What Order?4 Crl.A.No.2650/2019
7. It is answered for the aforesaid points 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
8. POINT NO. 1 &2 :- These points are taken together to avoid repeated discussions.
9. Brief facts of the complaint is as follows;
The accused issued a cheque in favour of the complainant bearing cheque No.700115, dated 10.05.2016, for Rs.3 lakhs, drawn on Karnataka State Co-operative Apex Bank Ltd., Dr.Ambedkar Veedhi, Vidhanasoudha Branch, Bengaluru-01. 3. That the complainant has presented said cheque on 10.05.2016 for encashment purpose through his Banker State Bank of India, Sulthan Palya branch, Bengaluru. The cheque was returned dishonored for the reason "Funds Insufficient" as per Memo dated 11.05.2016. Complainant caused a legal notice to the accused through his counsel on 9.6.2016 through registered post. The notice issued to the accused was served on him on 10.6.2016. Thereafter accused neither replied to the notice nor paid the 5 Crl.A.No.2650/2019 cheque amount. Therefore, complainant filed the complaint against the accused/appellant U/s.200 of Cr.P.C. for the offence punishable U/s.138 of N.I.Act.
10. Perused entire order sheets, complaint filed U/s.200 of Cr.P.C., for the offence punishable U/s.138 of N.I.Act, examination in chief affidavit of the complainant, plea of accusation, contents of exhibited documents Ex.P.1 to Ex.P.6. 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.
11. So far as appreciation of evidence is concerned, Complainant is examined as P.W.1. P.W.1 has reiterated averments of complaint in his examination in chief. Ex.P.1 is the Cheque, Ex.P.2 and 3 are Bank Endorsements, Ex.P.4 is the Office copy of the legal notice, Ex.P.5 is the Postal Receipt. Ex.P.6 is the Article Tracking Report issued by concerned Postal Authority. PW- 1 in his evidence and cross-examination has specifically and unequivocally deposed that the accused is his friend and approached him in the month of April 2015 and sought the hand loan to meet out his family problems. He gave loan of Rs.3 lakhs to the accused in the last week of April 2015. The accused in order to repay the hand loan amount has issued a cheque No.700115, dated 10.5.2016, for Rs.3 lakhs, drawn on Karnataka State 6 Crl.A.No.2650/2019 Cooperative Apex Bank Ltd. Vidhanasoudha, Bengaluru. When the cheque was presented for encashment purpose on 10.5.2016 through State Bank of India, Sulthan Palya branch, Bengaluru, the cheque was returned dishonored for the reason "Funds Insufficient" dated 11.05.2016. The statutory notice dated 9.6.2016 was issued to the accused and it was duly served on the accused on 10.6.2016. Despite of service of the statutory notice on the accused, accused failed to reply to the notice and to pay the cheque amount. Therefore, from the evidence of PW1 coupled with documents, the Complainant has successfully discharged initial burden of proof casts under Section 138 of N.I Act. Thereafter, burden shifts on the accused as per presumptions under Section 118 and 139 of N.I Act in the form of reverse onus on the accused to rebut presumptions.
12. Accused appeared before the Court and enlarged on bail. He has specifically denied the liability to the complainant. DW-1 in his examination-in-chief has deposed that he do not know the complainant by name Devegowda. From 1998 he was working in Vidhanasoudha and by that time, he came into contact of one Ramakrishne Gowda. He availed loan of Rs.1 lakh from said Ramakrishne Gowda and gave Ex.P1 cheque. Ramakrishne Gowda had lent of Rs.1 lakh with interest @ 4%. Said 1 lakh loan amount was repaid within four 7 Crl.A.No.2650/2019 months. When he asked to return the cheque, Ramakrishne Gowda has informed that the cheque was lost while he was changing his residential house. That the police complaint against Ramakrishne Gowda was lodged. During the course of investigation, Ramakrishne Gowda had appeared before the police and confessed the accusation charged against him. Ramakrishne Gowda had given the said cheque to present complainant Devegowda. On 10.05.2016, no cheque was given as he was working at Sakaleshpura as Tahsildar. He was not residing at Bengaluru at the relevant point of time. Further on behalf of the accused the DW-2 has got examined who is a Notary Public at Bengaluru. This witness has deposed that, he has notarized the Ex.D.5 which is the alleged declaration by way of Affidavit sworn in by Ramakrishne Gowda.S; Ramakrishne Gowda as a first party and accused as a Second Party had signed on Ex.D.5. The Notary Register maintained by the DW.2 also marked at Ex.D.6. It is the specific case of the accused that no transaction took place between him and complainant. Though the counsel for the accused cross examined the complainant in length, nothing has been elicited from the mouth of the complainant to prove the defense of the accused. It can also be seen from the evidence of DW-1 that, the defence of the accused that at no point of time he borrowed alleged loan from the 8 Crl.A.No.2650/2019 complainant and on the other hand, he borrowed loan of Rs.1 lakh from the so-called Ramakrishne Gowda and to him the cheque in question had given and the same cheque has been misutilized by the complainant and got filed this false complaint. Trial court has properly appreciated evidence on record and the accused failed to produce relevant and appropriate evidence. The accused would have examined Ramakrishne Gowda in support of his defence. If at all Ramakrishe Gowda was unable to come to court, accused could have examined him through Court Commissioner. Mere statement of DW- 2 notary public that he has given statement before him do not prove the defence of accused.
13. I have perused the cross-examination of PW-1. During the cross-examination of PW-1, it has been elicited from the mouth of PW-1 that his annual income was Rs.8 lakhs to 10 lakhs. This piece of version proves the lending capacity of the complainant at the relevant point of time. Version of DW-1 also shows that the accused unequivocally admits the cheque and his signature on it.
14. It is settled principle of law as held by House of Lords in Vickers Sons and Maxim Ltd., Vs. Evans (1910) AC 444 as quoted with approval by the Hon'ble Apex Court in Jamma Masjid, Mercara Vs Kodimaniandra Deviah and Others AIR 1962 SC 847 and reiterated in Shiv Shakti 9 Crl.A.No.2650/2019 Co-operative Housing Society vs Swaraj Developers, AIR 2003 SC 2434 and in catena of decisions that the court cannot read anything into a statutory provision which is plain and unambiguous.
On bare perusal of the object of the Negotiable Instruments Act, it shows that the main object of the Chapter introducing dishonour of cheques on account of insufficiency of funds as penal offence in the Act is to enhance the acceptability of cheques. In order to attract the ingredients of Sec.138 of NI Act, the complainant needs to prove that the cheque drawn by a drawer of the Cheque on an account maintained by him issued to the payee in discharge of any debt or other liability, cheque is presented to Bank within three months of the date of cheque and returned by the drawer bank as unpaid, complainant has made a demand for the payment of the said amount of money by giving a notice in writing within 30 days of receipt of information of dishonour by the Bank, and the drawer of such cheque has not made the payment of the said amount of money to the payee within fifteen days of the receipt of the said notice, then such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of the Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or 10 Crl.A.No.2650/2019 with both.
It is well settled principle of criminal jurisprudence that a criminal trial proceeds on the presumption of innocence of the accused. An accused is presumed to be innocent unless proved guilty. It is the complainant/ prosecution to prove the guilt of the accused beyond reasonable doubt. However, in respect of offence under section 138 of the Act, although there is a reverse onus clause contained in sections 118 and 139 of the Act, the initial burden is on the complainant.
15. It is also a settled proposition of law that the standard of proof which is required from the accused to rebut the statutory presumption under section 118 read with section 139 of the Act is preponderance of probabilities. The accused is not required to prove his case beyond reasonable doubt. This onus on the accused can be discharged from the materials available on record and from the circumstantial evidences or even by admissions in the cross examination of complainant and his witnesses.
In K. Bhaskaran v. Sankaran Vaidhyan Balan reported in AIR 1999 SC 3762, the Apex Court held that once the signature in the cheque is admitted to be that of the accused, the presumption envisaged in section 118 of the N.I. Act can legally be drawn to infer that the cheque 11 Crl.A.No.2650/2019 was made or drawn for consideration on the date which the cheque bears.
In Rangappa v. Sri.Mohan reported in AIR 2010 SC 1898, a three judges' bench of the Supreme Court held that that once issuance of a cheque and signature thereon are admitted, presumption of a legally enforceable debt in favour 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. A post dated cheque is a well recognized mode of payment.
In K.S. Ranganatha Vs. Vittal Shetty reported in 2021 SCC OnLine SC 1191, a three judges' bench of the Supreme Court held that once the cheque is admitted to be that of the accused, the presumption envisaged in 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 the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. It is further held that the position of law makes it crystal clear that when a cheque is drawn out and is relied upon by 12 Crl.A.No.2650/2019 the drawee, it will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount; such presumption of course, is rebuttable by proving to the contrary. The onus is on the accused to raise a probable defence and the standard of proof for rebutting the presumption is on preponderance of probabilities.
M/s.Kalemani Tax vs. Balan (Crl.A.No.123/2021) (LL 2021 P.75) decided on 10.02.2021, a three judges' bench of the Supreme Court has observed that even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
16. Applying the above said principles to the present case and before considering the point whether accused succeeded to rebut presumptions and to establish his defence to the extent of probabilities, it is just and necessary to accumulate undisputed facts in this case.
17. It is not in dispute that bounced Cheque Ex.P1 belong to the bank account of the accused. It is also not in dispute that, signatures appearing on the bounced Cheques are the signature of the accused. It is also not in 13 Crl.A.No.2650/2019 dispute that, Cheque presented by the complainant came to be dishonoured by the banker of the accused for the reason stated in the dishonour memo. Therefore, the complainant has successfully proved the amount which was advanced to the accused, the accused has issued the cheque in question. The accused got examined himself as DW-1 and one S.Vijaykumaras-DW-2. The accused has mainly relied on Ex.D.1 & D.2 are certified copies of cheques dated 27.03.2013, Ex.D.3 is certified copy of the police complaint, Ex.D.4 is endorsement issued by J.B.Nagar P.S., Ex.D.5 is Declaration, Ex.D.6 is Notary Register, Ex.D.7 is extract of attendance register pertaining to the office of accused. These are not at all denied by the Complainant. However, these documents do not render any assistance to the defense of the accused. Though it is the contention of the accused that Accused had taken a loan from one Ramakrishne Gowda and issued signed blank cheque to him, and the said cheque has been misused by him, complainant has denied the said suggestion that accused had taken Rs.1 lakh loan from one Ramakrishne Gowda and said cheque has been misused by him. Also denied a suggestion that accused has not given any cheque to complainant on 10.05.2016 and accused was at Sakleshpur on that date. Therefore, the trial Court has rightly held that the accused has not rebutted the presumption arising under section 139 of 14 Crl.A.No.2650/2019 N.I.Act.
18. In addition to that accused didn't produce any documents to show that, accused filed any complaint before jurisdictional police against complainant for misuse of cheque by the complainant. Accused did not produce any document to show that he filed private complaint before the jurisdictional Magistrate in this regard. Accused not even produced any documents to show that, he instructed his banker to 'stop payment' when bounced cheques were presented for realization to show that he is not liable to make any payment under the bounced cheque. Therefore, from the oral and documentary evidence adduced by the complainant, it is proved that the accused issued the cheques for legally recoverable.
19. This Court has compared the reasons assigned by the trial court in the impugned judgment of conviction as discussed above with the allegations made in the memorandum of appeal. No grounds are made out in the memorandum of appeal to interfere with the Impugned judgment of conviction.
20. So far as quantum of punishment is concerned, fine of Rs.3,10,000 (Rupees Three Lakhs Ten 15 Crl.A.No.2650/2019 Thousand Only.) was imposed for dishonor of cheque for Rs.3,00,000/-. In default of payment of fine, accused was directed to undergo simple imprisonment for 6 months. Out of the fine amount, Rs.3,05,000/- (Rupees Three Lakhs Five Thousand only). is ordered to be paid to complainant by way of compensation and Rs.5,000/- to the State Exchequer. Fine amount imposed is within the purview of Section 138 of N.I.Act. Appellant failed to show that sentence imposed is exorbitant. Accused/appellant failed to show that quantum of fine imposed is excessive. There is no merit in the appeal. Order under appeal is sustainable in law. Hence, interference of this court is not necessary. Accordingly, point Nos.1 is answered in the Affirmative and point No.2 is in the Negative.
21. POINT No.4 :- 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.
Consequently, impugned judgment of
conviction and order of sentence
16 Crl.A.No.2650/2019
C.C.No.16904/2016 dated 28.08.2019 on the file of court of XV A.C.M.M 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 Judgment to the trial court, forthwith.
(Dictated to the Judgment-Writer directly on computer, typed by her and corrected, signed and then pronounced by me in the open court on this 16th day of May, 2022.) (Sadananda Nagappa Naik) LIX ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-60, BENGALURU CITY.