Bangalore District Court
Mr. Naveed Pasha vs Proprieter on 1 April, 2021
IN THE COURT OF THE LXII ADDL.CITY CIVIL
& SESSIONS JUDGE, BENGALURU
Dated this the 1 st day of April, 2021
PRESENT
SRI. R. ONKARAPPA, B.Sc,L.L.B.,
LXII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU (CCH-63)
Crl. Appeal Nos. 153/2018,
154/2018 and 155/2018
APPELLANT:/ Mr. Naveed Pasha,
ACCUSED Proprieter, N. K. Electricals,
No. GIS 15183, SDV School,
B.N. AZ East Division,
Saraipalaya, Vidya Sagar,
Thanisandra Main road,
Dr. SRK Nagar Post,
Bengaluru-560 077
R/at No. 13, 2nd Cross,
2nd Main, Nagwara main road,
Bengaluru-560 045.
(By Faiz Pasha, Advocate)
-Vs-
RESPONDENT :/ Mr. Syed Shafi,
COMPLAINANT S/o Late Syed Mustafa,
Aged about 49 years,
R/at No. 7, 6th Main road,
Gandhinagar,
Bengaluru-560 009.
(By S.K., advocate)
2 Crl.A. 153/2018, 154/2018
& 155/2018
JUDGMENT
The present all criminal appeal have preferred by the appellant /accused under Section 374(3) of Cr.P.C against the Judgment dated 21.12.2017 passed by the learned 21st Addl. Chief Metropolitan Magistrate, Bengaluru in C.C.No. 8701/2017, 8705/2017 and 8762/2017, wherein the said trial Court convicted the appellant for an offence punishable U/s.138 of Negotiable Instrument Act and sentenced him in CC No. 8701/2017 to pay fine of Rs. 1,05,000/-. In default to undergo simple imprisonment for a period of 2 months. In CC No. 8705/2017 to pay fine of Rs. 80,000/-. In default he shall undergo simple imprisonment for a period of 1 month. In CC No. 8762/2017, to pay fine of Rs. 1,55,000/-. In default he shall undergo simple imprisonment for a period of 3 months.
2 Since these three criminal appeals referred above are inter connecting with each other, hence are all disposed off by this common Judgment.
3 Along with the appeal memo, the appellant have filed I.A. No. 1 under section 5 of Limitation Act 3 Crl.A. 153/2018, 154/2018 & 155/2018 sought to condone the delay of 7 days in preferred these appeals.
4 The factual matrix of these appeals are that, the complainant and the accused are well acquainted with each other. Accused being Class-I Electrical Contractor, engaged in business of electrical installation works and other electrical work in the name and style of "N.K. Electricals", in order to improve his above said business, he had approached him for financial assistance and borrowed loan of Rs. 5,00,000/- and entered into memorandum of understanding dated 15.03.2014 and assured for refund of above said loan amount within one year with fixed profits in the following manner i.e., on or before 15.03.2015 he had agreed to pay Rs. 2,50,000/- and on or before 30.04.2015 he had agreed to pay Rs. 75,000/-. But, the accused failed to repay the amount. Hence, complainant requested the accused for repayment of entire amount. So, accused in order to discharge his liability, he issued post dated cheques. That is cheque bearing Nos. 487100 and 487101 dated 15.03.2015 for a sum of Rs. 50,000/- each 4 Crl.A. 153/2018, 154/2018 & 155/2018 in CC No. 8701/2017. Two more post dated cheques bearing No. 487104 and 487105 dated 30.04.2015 for a sum of Rs. 50,000/- and Rs. 25,000/- respectively in CC No. 8705/2017. Other two postdated cheques bearing No. 135014 and 135015 dated 15.03.2015 for a sum of Rs. 75,000/- each in CC No. 8762/2017. As per assurance of the accused, the complainant presented all the above cheques on 10.06.2015 through his banker, but said chques were dihonoured for the reason of "Insufficient funds" in the account of accused. Hence, he got issued legal notice on 16.06.2015 through RPAD by demanding cheques amount. Whereas said notices have been returned with endorsement "Addressee Left" as accused intentionally evaded to receive the notice having full knowledge of dishonour of cheques. Hence, it is to be construed as deemed service. According to the complainant, the accused has committed an offence punishable under section N.I., Act. Hence the complainant is constrained to file the complaint. 5 The accused appeared before the trial court in all three cases and contested the matter. To prove the 5 Crl.A. 153/2018, 154/2018 & 155/2018 guilt of the accused, the complainant examined himself as P.W.1 in all three cases and got marked the documents at Ex.P.1 to Ex.P6 in all the cases. To substantiate his defence, the accused did not adduced his side evidence. The accused denied the incriminating evidence on examined him under Section 313 of Cr.P.C. The trial court after hearing both the parties 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 him as aforesaid. 6 Against this judgment the accused have preferred the present all three appeal on various common grounds. They are, judgment of the trial Court is illegal, improper, capricious, perverse and not in accordance with law. Wrongly drawn the presumption under section 139 and 118 of N.I. act. Gravely erred in not to appreciating the oral and documentary evidence. That the complainant has failed to prove that the appellant had issued the cheque towards to discharge of his liability. Learned Magistrate has erroneously deliberately gave wrong reason from justifying the passing of the 6 Crl.A. 153/2018, 154/2018 & 155/2018 conviction on most of the material facts are contrary to the records opposed to the documents. Failed to prove the ingredients of Section 139 of N.I. Act, as the complainant stolen the blank signed cheques and filed these case. Sentence is very sever and harsh. Perverse, capricious, illegal, improper, arbitrary, unjust and biased. Hence he prays for set aside the all impugned judgments of conviction. To avoid the repetition of the facts, the above all grounds taken for my common discussion.
7 After service of notice, the respondent appeared through his counsel in all three appeals. The Trial Court Records have been secured in all three Cases.
8 Inspite of opportunity given to the appellant, the appellant did not address his side argument. Heard arguments on side of respondent. Perused the records.
9 The points that arise for my determination are:
1. Whether the I.A. No. 1 filed u/s 5
of Limitation Act is establish the prima facie on application in all three cases and same is deserves to allow?
7 Crl.A. 153/2018, 154/2018 & 155/2018
2. Whether the complainant established that the disputed cheques in all three cases have been issued by the accused for repayment of amount?
3. Whether the trial court has committed any error in law or in fact in convicted the accused ?
10 My findings to the above points are as under:-
POINT No.1 :- In the Negative
POINT No.2 :- In the Affirmative
POINT No.3 :- In the Negative for the
following:-
R E A SON S
11 POINT No.1:- For the sake of convenience,
the parties are referred to as per their litigative status as before the trial court. The appellant is the accused and respondent is the complainant.
12 After go through the file and case records it is main contention of the accused contended at the affidavit which is annexed to the limitation application is that, the appellant is aged about 57 years and he is suffering from infective hepatitis, anaemia, low back ache, menorrhagia for the post one month and he was under medical treatment and he was advised complete bed rest and also 8 Crl.A. 153/2018, 154/2018 & 155/2018 because of the said reasons he could not meet his advocate and file these appeals in time. He had applied for the certified copy on 12.01.2018 and the same was ready on 16.01.2018 and hence there is seven days delay in filing these appeals. The reason to file the present appeal with a 7 days delay is one with not intentional but for the bonafide reasons. When after go through the reasons assigned in the affidavit annexed to the limitation applications, that the appellant got obtained the certified copy of the judgments on 16.01.2018. The learned trail Judge passed the impugned judgments on 21.12.2017. The present all three appeals came to be filed on 30.01.2018. After go through the above all the dates of events that it clarified that the appellant got the certified copy of the impugned judgments well in time prescribed for preferred an appeal, but he has not preferred appeals within the stipulated period on or before 21.01.2018, from the date of obtained the copy of impugned judgments to stipulated date 21.01.2018, there is an 5 days delay gap between the two dates. But the appellant have assigned that he was under medical 9 Crl.A. 153/2018, 154/2018 & 155/2018 treatment and he was advised complete bed rest. Further, the appellant have failed to explain from which date to next in which date he was advised for complete bed rest and what kind of treatment that he has got and where he got the alleged medical treatment, to substantiate the all same reason, no document have been forthcome. With these observations, I am of the view that the appellant failed to establish the prima facie on the limitation applications with a cogent reason and documents. Hence, I answer the point No. 1 in the Negative. 13 POINT No.2 and 3:- In order to ascertain the legality on the complaint, I perused the records. That the complainant presented the cheque bearing Nos. 487100 and 487101 dated 15.03.2015 subjected in Crl.A. 153/2018 (CC No. 8701/2017). The same was returned on 11.06.2015 with the inward return report as per Ex.P3. Issued demand notice dated 16.06.2015 as per Ex.P4. Postal receipt dated 16.06.2015 as per Ex.P5. Postal cover which was sent to the accused returned with the shara "Addressee left" dated 20.06.2015 as per Ex.P6. The complainant presented the complaint at 10 Crl.A. 153/2018, 154/2018 & 155/2018 before the Trial Court on 28.07.2015. That the complainant presented the cheque bearing Nos. 487104 and 487105 dated 30.04.2015 subjected in Crl. A. 154/2018 (CC No. 8705/2017). The same was returned on 11.06.2015 with the inward return report as per Ex.P3. Issued demand notice dated 16.06.2015 as per Ex.P4. Postal receipt dated 16.06.2015 as per Ex.P5. Postal cover which was sent to the accused returned with the shara "Addressee left" dated 20.06.2015 as per Ex.P6. The complainant presented the complaint at before the Trial Court on 28.07.2015. That the complainant presented the cheque bearing Nos. 135014 and 135015 dated 15.03.2015 subjected in Crl. A. 155/2018 (CC No. 8762/2017). The same was returned on 11.06.2015 with the inward return report as per Ex.P3. Issued demand notice dated 16.06.2015 as per Ex.P4. Postal receipt dated 16.06.2015 as per Ex.P5. Postal cover which was sent to the accused returned with the shara "Addressee left" dated 20.06.2015 as per Ex.P6. The complainant presented the complaint at before the Trial Court on 28.07.2015. This much case of 11 Crl.A. 153/2018, 154/2018 & 155/2018 the complainant in all three complaints have also not much disputed by the accused.
14 After careful perusal of the records, it obvious that the complainant maintained the all three complaints before the trial court well in time and instruments i.e., cheques subjected in all three complaints, present by the complainant through his banker for encashment, also within time and all documents are valid in nature. As the trial court keenly appreciated all these facts in accordance with Section 138 of N.I. Act, in taking the cognizance in all three complaints, I am of the opinion that the learned trial Judge adopt a rightful procedure in taking the cognizance against to the accused and there is no infirmity on record to interfere in this aspect.
15 Core substance of the complaint is that, the accused being a Class-I electrical contractor engaged in electrical installation work and other electrical works in the name and style "N.K. Electricals". In order to improve his business the accused had approached the complainant for financial assistance and borrowed a loan of Rs. 5,00,000/- by executing memorandum of 12 Crl.A. 153/2018, 154/2018 & 155/2018 understanding dated 15.03.2014 and assured for refund of above said loan amount within one year with fixed profits in the following manner i.e., on or before 15.03.2014 he had agreed to pay sum of Rs. 2,50,000/- and on or before 30.04.2015 the accused agreed to pay Rs. 75,000/-. Instead of it the accused failed to repay the amount. To realise the said amount, the accused issued a post dated cheques as per Ex.P1 and Ex.P2 subjected in CC No. 8701/2017 for Rs. 50,000/- each. Two more post dated cheques as per Ex.P1 and Ex.P2 subjected in CC No. 8705/2017 for Rs. 50,000/- and Rs. 25,000/- respectively. Other two post dated cheques as per Ex.P1 and Ex.P2 subjected in CC No. 8762/2017 for sum of Rs. 75,000/- each. After presenting above all four cheques, the same cheques were returned with the shara "Insufficient Funds" as per Ex.P3 inward returned report. On such dishonouring of the cheques the complainant have issued legal notice to the accused as per Ex.P4 dated 16.06.2017 respectively in all three cases. The same legal notice returned as unserved with the shara "Addressee Left". Hence the complainant no other 13 Crl.A. 153/2018, 154/2018 & 155/2018 alternative way to recover the amount covered under the cheques the complainant have maintained the complaint at before the Trial Court. This much of an case in all three cases, reiterate by the complainant, when he deposed his evidence who had been himself examined at before the Trial Court as PW1.
16 On the other hand, it is the main contention of the accused that, as the accused denied the transaction between the complainant and the accused in total. The accused made some effort to elicit his case through the mouth of PW1 while at the time of cross examination of the PW1. But, the same elicitation and suggestions have denied by the PW1. Further case of the accused that the complainant have stolen the cheques in question herein, the same stolen cheques try to mis use by the complainant. The same suggestion have denied by the PW1 in total as false. Further suggestion of the accused that no notice in compliance to Section 138(b) of N.I. Act issued against to the accused. The same suggestion also denied by the PW1 in total as false. Also a defence of the accused that at no time arrived to the 14 Crl.A. 153/2018, 154/2018 & 155/2018 accused to borrowed a loan at before the complainant. The same suggestion also denied by the PW1 as false. To ascertain the grounds made in appeal memo and defence try to elicit through the mouth of PW1, I have taken up the same defence and ground for my discussion as below. 17 The case of the accused that the cheques in question herein were stolen by the complainant and try to mis utilized the same against to the accused, when the same cheques were put by the accused at his office. To ascertain this fact, I go through the records. The defence and ground made in the appeal memo is obvious that the Ex.P1 and Ex.P2 cheques subjected in CC No. 8701/2017, Ex.P1 and Ex.P2 cheques subjected in CC No. 8705/2017 and Ex.P1 and Ex.P2 cheques subjected in CC No. 8762/2017 are belongs to the accused and his account. Further, the accused have also not disputed the signature available in Ex.P1 and Ex.P2 cheques as per Ex.P1(a) and Ex.P2(a) subjected in CC No. 8701/2017, Ex.P1 and Ex.P2 cheques as per Ex.P1(a) and Ex.P2(a) subjected in CC No. 8705/2017 and Ex.P1 and Ex.P2 cheques as per Ex.P1(a) and Ex.P2(a) subjected in CC No. 15 Crl.A. 153/2018, 154/2018 & 155/2018 8762/2017. This much of an case have admitted by the accused without any dispute and no cross examination held by the accused to deny the disputed all instrument in question and signature available in all disputed instrument. Further, no single suggestion that the accused have suggested to the PW1, Ex.P1 and Ex.P2 cheques and signature as per Ex.P1(a) and Ex.P2(a) respectively in all three cases not belonged to the accused. Now the stands of the accused that the above all cheques available under three cases were stolen by the complainant when the accused put above all cheques at his office. The complainant have also not disputed much about that he known the accused. Further, the complainant also not much disputed that he used to visit the office of the accused. Defence of the accused is that the same cheques were stolen by the complainant and make mis utilize against to interest of the accused. The same suggestion that the accused have made to the PW1 during the cross examination of PW1. The law has cleared by the Hon'ble High Court of Gujarath in Khimji Bhai Kurji Bhai Vs the State of Gujarath 16 Crl.A. 153/2018, 154/2018 & 155/2018 reported in 1982 Crl. L.J. (Guj) P 381, the same is herein extracted "Suggestion in cross examination are no evidence. This proposition of law is good both in the case of the prosecution and the defence. Mere hurling of some such suggestions which are denied, can hardly take the place of proof or evidence. If the accused wants to establish a certain fact, he has to lead evidence on that score. Such suspicion cannot have any place in the realm of appreciation of evidence. We reiterate that a suggestion denied by a witness remains only a suggestion and has no evidentiary value at all".
With the strength of above Judgment of Hon'ble High Court of Gujarath, that I am of the view that the accused have failed to brought out his defence even after hold a lengthy cross examination of PW1. 18 Further defence and ground of the accused that the complainant have failed to issued a legal notice in compliance under section 138(b) of N.I. Act. To 17 Crl.A. 153/2018, 154/2018 & 155/2018 ascertain the same, I go through the case records. Case records in all three cases speaks that the complainant have issued a legal notice dated 16.06.2015 Ex.P4 respectively in all three cases. The same was sent to the accused through a Registered post Acknowledgment due. To substantiate the sending of RPAD, PW1 have got marked one postal receipt as per Ex.P5 in all three cases. Ex.P5 postal receipt have not much disputed by the accused either in the cross examination or in his argument. After sent the legal notice as per Ex.P4 in all three cases to the accused, the same registered post acknowledgment due returned as unserved with the shara "Addressee left". The same RPAD postal cover got marked as per Ex.P6 respectively in all three cases. Perused the Ex.P6 in all three cases. In all three cases Ex.P6 disclose that "addressee left". To find out the reality on the ground and defence of the accused, I again go through the cause title of the complaint in all three cases. When compare the address of the accused engraved upon Ex.P6 with the cause title mentioned in the complaint in all three cases, both the address 18 Crl.A. 153/2018, 154/2018 & 155/2018 engraved in Ex.P6 in all three cases and the address mentioned in the cause title of the complaint in all three cases are one and the same. Further records also speaks that the accused summons was duly served on the accused as per the shara made by the police on accused summons. Law has cleared under section 27 of General Clause act. Further law has also settled by the Hon'ble Supreme Court of India in C.C. Alavi Haji vs Palapetty Muhammed & Anr reported in (2007) 6 SCC 555 regard to service of RPAD cover. With the strength of above the law and dictum of the Honble supreme court , I am of the view that there is no substantial force in the argument, canvased by the Counsel for the appellant. 19 The evidence of the complainant along with documentary evidence in all three cases clearly and categorically establish all the ingredients of Section 138 of N.I. Act. Moreover, the accused did not denied the issuance of cheque in question in favour of the complainant and the statutory presumption under section 139 N.I. Act remained as un-rebutted. Under this circumstance, the learned trial court drawn the 19 Crl.A. 153/2018, 154/2018 & 155/2018 presumption in favour of the complainant u/s 139 of N.I. Act that the accused had issued the cheque in question to the complainant towards discharge of legally enforceable debt or liability.
20 In view of the evidence referred above, the legal presumption under Section 139 of N.I. Act has to be raised. Raising of presumption under Section 139 of N.I. Act is permissible even as per the law laid down by the Hon'ble Supreme Court in the case of Rangappa V/s. Mohan in the decision reported in (2010) 11 SCC 441. Such presumption includes the existence of legally enforceable debt or liability. Therefore, presumption raised to the cheque by the trial court cannot be interfered with.
21 On appreciation of entire evidence in all three cases, this Court is of the opinion that the accused has failed to prove the fact that he has not issued cheque for discharge of legally enforceable debt. On the contrary, the complainant has proved that the accused has issued cheaques as per Ex.P1 and Ex.P2 in CC No. 8701/2017 for Rs. 50,000/- each. Two more post dated cheques as 20 Crl.A. 153/2018, 154/2018 & 155/2018 per Ex.P1 and Ex.P2 in CC No. 8705/2017 for Rs. 50,000/- and Rs. 25,000/- respectively. Other two post dated cheques as per Ex.P1 and Ex.P2 in CC No. 8762/2017 for sum of Rs. 75,000/- each towards discharge of legally enforceable debt and on presentation of the all cheques, they were all dishonored for the reasons "Insufficient Funds". Even after sent the legal notice, the accused has not paid the cheques amount. Hence, in the considered view of this Court, the complainant has proved that the accused has committed an offence punishable u/s 138 of N.I. Act. Such evidence is sufficient to punish the accused for the offence under Section 138 of N.I. Act.
22 Even inspite of go through the records, there is no materials available on records to substantiate the other grounds which are urged by the appellant in his appeal memo and the trial court rightly appreciated the facts and law upon the case on hand, as the trial court appreciated the facts and law upon the case, I have no hesitation to agree with the observation made by the learned trial judge. In view of such evidence on record, it 21 Crl.A. 153/2018, 154/2018 & 155/2018 is of my opinion that appellant failed to establish any illegality or error or infirmity in the judgments and sentence passed by the Learned Trial Court in all three cases, as such, I hold that the trial court has not committed any error in convicting the accused. Accordingly, the Appeal has to be rejected. Thus, I answer point No.2 in the Affirmative and point No.3 in the Negative and proceed to pass the following:
ORDER The Criminal Appeals No. 153/2018, 154/2018 and 155/2018 filed under Section 374(3) of Cr.P.C. is hereby dismissed. Consequently I.A. No. 1 filed under section 5 of limitation of Act in all three above appeals are hereby rejected.
Judgments and sentence dated 21.12.2017 passed by the learned XXI ACMM, Bengaluru in CC No. 8701/2017, CC 8705/2017 and CC 8762/2017 are hereby confirmed.
Send the copy of the Judgment along with the records to the Trial Court.
22 Crl.A. 153/2018, 154/2018
& 155/2018
As these three cases are clubbed
for common judgment, original
judgment shall be kept in Crl. Appeal
No. 153/2018 and copies thereof
shall be kept in Crl. Appeal No.
154/2018 and Crl. Appeal No.
155/2018.
(Dictated to the Stenographer directly on computer, typed by her and then corrected and pronounced by me in the open court on this the 1 st day of April, 2021).
(R. ONKARAPPA) LXII Addl. C.C. & Sessions Judge, BANGALORE CITY.