Bangalore District Court
Smt. Parvathamma vs Sri. Ramesh on 1 April, 2022
KABC010164352021
Presented on : 11-08-2021
Registered on : 11-08-2021
Decided on : 01-04-2022
Duration : 7 months 11 days
IN THE COURT OF LXV ADDL CITY CIVIL AND SESSIONS
JUDGE; BANGALORE CITY
PRESENT
SRI. SUBHASH SANKAD
B.A., LL.M.
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 01 st day of April, 2022
CRL.A.No.505/2021
PETITIONER/S :- SMT. PARVATHAMMA
w/o late Rajashekar,
Aged about 52 years,
Working at office of The Deputy Director
of Fisheries, Government Of Karnataka,
Bengaluru Zone, No.39/2,
ASVNN Bhavana, K.G. Road,
Bengaluru -560009.
(By Sri. CBH., Advocate)
V/s.
RESPONDENT/S:- SRI. RAMESH
s/o late Puttaswamy,
Aged about 65 years,
R/at No.22, 1st Main, 1st Cross,
Kavika Layout, Mysore Road,
Bengaluru-560026.
(By Sri. MM., Advocate)
2 Crl.A.No.505/2021
JUDGMENT
This appeal is filed by the appellant under Section 374(3) of Cr.P.C., seeking to set aside the judgment of conviction and sentence passed by the XXIII Additional Chief Metropolitan Magistrate, Bengaluru, in CC.No.6416/2019 dated 23.07.2021.
2. The appellant is the accused and the respondent is the complainant before the trial Court, for the sake of convenience parties are referred by their ranks before the trial Court.
3. The brief facts of the case are as follows:-
The accused is known to him since several years. In the month of May, 2016 the accused approached and requested him for hand loan of Rs. 1,00,000/- to meet her domestic needs and legal necessities. By considering the needs of the accused, the complainant paid a sum of Rs.1,00,000/- to the accused and she has acknowledges the receipt of the said amount and also promised to repay the said amount within August, 2018. After lapse of said period, the complainant approached the accused and demanded to repay the loan amount at that time the accused had issued cheque bearing No.113604 dated 17.11.2018 for Rs.1,00,000/- in favour of the complainant. The complainant presented the said cheque for encashment and the same was returned with endorsement 'Funds Insufficient'. The fact of dishonor of cheque was informed to the accused, since the accused did not make the payment the complainant got issued demand notice calling upon the accused to make payment within 15 days. Since the accused did not make payment. Hence, the complainant has filed the complaint.3 Crl.A.No.505/2021
4. The trial court took cognizance of offence and issued summons to accused. The accused appeared through her counsel and defended the case. The trial court recorded the plea of accusation. The accused pleaded not guilty of the accusation levelled against her and claimed to be tried. Hence, the case was posted for trial.
5. To prove his case, the complainant was examined himself as PW1 and got marked the documents as Exs.P1 to 9. After completion of the evidence, the trial court examined the accused as required by Section 313 of Cr.P.C. The accused denied the incriminating evidence and she was examined as DW1 and not marked any document. After hearing both the side, the trial court passed the judgment, convicting the accused and sentenced her to pay a fine of Rs.1,25,000/-.
6. Being aggrieved by the judgment of conviction and sentence passed by the trial court, the appellant herein has filed the present appeal challenging the impugned judgment on various grounds. The notice was issued to the complainant. The complainant appeared through his counsel. The trial court records were secured. After receipt of the TCR the appeal was posted for arguments.
7. I have heard the argument of both the side, gone through the trial court records, the impugned judgment of conviction and the grounds urged in the appeal memo. Now the points that arise for my consideration.-
1. Whether the impugned judgment of conviction is illegal and erroneous?
4 Crl.A.No.505/20212. Whether the appellant has made out any grounds to interfere with the impugned judgment of conviction and sentence?
3. What Order?
8. My findings on the above points are.-
Point No.1:- In the Negative
Point No.2:- In the Negative
Point No.3:- As per the final order
for the following
REASONS
9. Points No.1 & 2:- Since these two points are
interconnected with each other, for the sake of convenience, I have taken these points together for discussion and answer.
10. The counsel for appellant has argued that the trial court has convicted the accused only on the basis of the statement given by the accused under Section 313 Cr.P.C. Further submits that 313 Cr.P.C. cannot be sole base for conviction. The accused has rebutted the presumption. It is his further submission that demand notice is not served on the accused. The cheque in question was not issued towards discharge of debt. The accused has given the cheque for payment of LIC premium, the complainant has misused the said cheque and filed the false complaint. The trial court has not considered the evidence on record properly. With these argument he has sought for allowing the appeal.
11. Since this is the first appellate court, it is necessary to re- appreciate the facts and evidence on record. It is specific case of the complainant that the accused had borrowed hand loan of 5 Crl.A.No.505/2021 Rs.1,00,000/- from the complainant and towards repayment of loan the accused issued the cheque in question which came to be dishonored after presentation. Though, the legal notice was issued to the accused, she has not paid the cheque amount. Hence, he has filed the complaint.
12. In order to substantiate his case, the complainant himself was examined as PW1 and got marked the documents at Ex.P1 to Ex.P9. Ex.P1 is the cheque, Ex.P1(a) is the signature of the accused, Ex.P2 is the bank endorsement, Ex.P3 is the office copy of legal notice, Ex.P4 & 5 are the postal receipts, Ex.P6 is the unserved RPAD cover, Ex.P7 is the complaint dated 13.11.2018, Ex.P8 is the track consignment and Ex.P9 is the copy of voters ID card. The careful perusal of the evidence and materials placed by the complainant show that the presumption goes in his favour. The finding of the trial court in this regard is correct.
13. The accused has cross-examined PW1 at length and the accused has been examined as DW1. She has stated in her evidence that she has not borrowed Rs.1,00,000/- from the complainant, she has not issued the cheque towards repayment of the loan amount. She has stated that while she was working in Fisheries Department in Shivamogga, the previous Director has introduced the complainant who was working as LIC agent and also insisted to take Life Insurance Policy from him and she has issued signed blank cheque to take a policy to the complainant however she has not issued the cheque. She has further stated that the demand notice is not served on her. The complainant has never met her in present office. She has never borrowed the amount and issued the cheque.
6 Crl.A.No.505/202114. It is her defense that there is no legally recoverable debt, as she has not borrowed any amount from the complainant and demand notice is not served on her. However, she has admitted the issuance of cheque and signature on the cheque. So far as the argument of the learned counsel for appellant is that the cheque in question was issued to LIC premium does not constitute a probable defense as the accused has not produced any supportive evidence. Further, another contention that is raised by the appellant counsel is that the demand notice is not served on him. The demand notice is issued to the address which has been admitted by the accused in her cross-examination. The same address was given to the complainant, the demand notice was issued to the complainant known to the complainant, which was given by the accused. The accused has admitted that she was residing in the said address again it cannot be held that the demand notice is not served on her.
15. The specific contention of the appellant's counsel is that the order of conviction is based on answers given by the accused in her 313 Cr.P.C. statement. In her 313 Cr.P.C. statement the accused has denied all the incriminating circumstances and she has further stated that while borrowing only Rs.30,000/- the complainant had obtained one signed blank cheque. Even after repayment of the entire amount the complainant has not returned the cheque, in turn, he has misused the cheque by presenting the same before the bank. By this statement of the accused what can be inferred is that, accused has admitted that existence of financial transaction between herself and the complainant. Though she has stated that even after repayment of the loan amount the complainant did not return the cheque. Again this contention cannot be accepted. The accused is a 7 Crl.A.No.505/2021 well educated she must be knowing the consequences of leaving the blank cheque with some third person. Further, she has not even taken any steps against the complainant for recovery of the said cheque from the complainant.
16. Further more, when she has stated that she has paid the entire amount to the complainant, and the complainant did not return the cheque, nothing prevented her to give stop payment request to the banker. The cheque was dishonored for the reason insufficient funds. Again it can be inferred that the cheque was issued towards discharge of legally recoverable debt. More so, the defense is that the cheque was issued towards security is not probable defense. As it is contended by the counsel for appellant, the conviction is not based solely on the basis of 313 Cr.P.C statement of the accused. The trial court has consider the evidence on record in a proper perspective. As such, there is no error or illegality in the judgment passed by the trial court, and the same does not call for any interference by this court. Accordingly, I answer points No.1 and 2 in the 'Negative.'
17. Point No.3:- In view of my findings on points No.1 and 2, I proceed to pass the following:-
ORDER The appeal filed by appellant under Section 374(3) of Code of Criminal Procedure, is dismissed.
The impugned judgment of conviction and sentence passed by the XXIII Additional Chief Metropolitan Magistrate, Bengaluru, 8 Crl.A.No.505/2021 in CC.No.6416/2019 dated 23.07.2021, is hereby confirmed.
Send a copy of this judgment to the trial court along with TCR forthwith.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 01st day of April, 2022) (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru