Bangalore District Court
Smt. Jayashree vs Sri.Syamsundar on 29 December, 2022
1
Crl.A.No.1042/2021
IN THE COURT OF LXIX ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH 70)
Present: Sri. Rajesh Karnam.K., B.Sc.,LL.B.,LL.M.,
LXIX Additional City Civil and
Sessions Judge, Bengaluru.
Dated this the 29 th day of December, 2022
Crl. Appeal No.1042/2021
Appellant : Smt. Jayashree,
w/o late Puttaswamy, 61 years,
r/at No. 924, 3rd main road,
4th cross, Vijayanagar,
Bengaluru-560 040.
[By Sri.B.Siddeswara, Advocate]
V/s
Respondent : Sri.Syamsundar
s/o Krishnappa, 39 years,
r/at no. 144/A, 2nd main road
2nd cross, Bhapujinagar,
mysore road,
Bengaluru- 560 040.
(By Sri. MS, Advocate)
: JUDGMENT:
This appeal is filed by the Appellant/accused being aggrieved by the judgment and sentenced to pay fine of Rs.3 lakhs and in default of payment to undergo simple imprisonment for 5 months, passed by the 23rd ACMM Bengaluru in CC No. 21725/2018 on 9.11.2021 for the offence punishable U/Sec.138 of N.I.Act.
2. The case of the appellant is that the complainant is a 2 Crl.A.No.1042/2021 bank and accused was in dire need of funds, as such requested the complainant for hand loan of Rs. 3 lakhs in the month of June, 2016 and the complainant has disbursed the same, on failure to repay the same on making specific demand accused issued cheque bearing No. 275220 dated 14.5.2018 for Rs. 2 lakhs drawn at Vijaya bank, Vijayanagar branch, on presenting the same came to be dishonored. Further another cheque bearing No. 211986 dated 14.5.2018 also handedover for an amount of Rs. 1 lakh, the same also dishonored. On failure of repayment of amount as endorsement issued on 22.5.2018 as `funds insufficient` complainant got issued legal notice on 9.6.2018 as not claimed the complainant lodged PCR, on the basis of the same crime came to be registered. At trial the complainant got examined as PW. 1 and marked Ex.p.1 to 8, in response the accused is examined as DW.1 and marked one document. After trial the trial court convicted the accused.
3. The grounds of appeal are the trial court has not observed the facts and circumstances of the case in a proper perspective and came to a wrong conclusion in convicting the accused. During the course of 313 statement the accused submit the signature contained in Ex.P. 2 is different as admitted by the complainant himself. Under the circumstances the question of payment of the amount does not arise. The complainant is not known to the accused. The complainant`s father was a member of the Society/Sangha, the appellant`s cheques were mis used. Actually the husband of the accused used to take care of the financial transaction of the family. Infact the accused had no any necessity to borrow the amount as the children of the appellant are well 3 Crl.A.No.1042/2021 placed, the complainant filed false case as there is no any legally enforceable debt being in existence as on the date of complaint. There are number of discrepancies in the statement of the complainant made , the trial court failed to appreciate the same. There is no opportunity so as to draw the presumption as per Sec. 138 of NI Act. Therefore the judgment is to be set aside and the accused is to be acquitted.
4. Heard both side argument and perused the record and also the citations relied by the counsel for the appellants.
5. In the light of challenge of impugned judgment by accused and above noted materials, following points fall for decision making of this court:-
1. Whether the appellant proves that there are reasonable grounds to consider his prayer as pleaded in appeal?
2. Whether the impugned judgment and order of sentence passed by the learned Magistrate is not proper and correct?
4. What order?
6. This court upon re-appreciation of available materials in the file with reference to prevailing law of land, give finding to the above points as follow:-
POINT NO.1&2; In affirmative POINT NO.3; As per final order, on the following;
:REASONS:
7. POINT NO.1 and 2; I have perused the appeal memo, 4 Crl.A.No.1042/2021 the private complaint, order sheet, impugned judgment and other materials available on record. The Respondent/complainant filed the private complaint against the accused. After considering the materials the learned Magistrate took cognizance and registered the case against the accused, the Accused appeared through his counsel and opposed the complaint. After full fledged trial the trial court convicted the accused in the above manner. Being aggrieved by the judgment of conviction the appellant has filed this appeal.
8. The learned counsel for appellant submits the complainant is not known to the accused. The husband of the accused was the Chairman of the Society wherein father of the complainant was a member. The cheques have been mis used by the complainant. The entire financial affairs were managed by the husband of the accused. The complaint is false. Infact on Ex.P. 2 there is no any signature of the accused , the signature does not belongs to the accused. Therefore there is no any legally recoverable debt. The children of the accused are software Engineers , as such she had no any necessity so as to borrow amount from the complainant. Therefore as the notice being not served there is no legally recoverable debt, the accused is to be acquitted of the alleged offence.
9. The learned counsel for respondent submitted the cheque belonging to the accused is admitted, the signature of the cheuqe is admitted, therefore the presumption drawn by the trial court is appropriate, as such the accused is to be convicted. The learned counsel for respondent brings to court notice the cross- examination of PW. 1 wherein as on 5.9.2019 This witness deposed he is working Film industry as an artiest and also being s 5 Crl.A.No.1042/2021 social worker being a member of Kasturi Karnataka Janapada Vedike Sangha , This witness deposed his annual income is Rs. 3 to 4 lakhs and he does not pay any income tax. The residence is occupied since his birth. His father is a retired employee in BHEL, similarly husband of the accused is also working in BHEL. This witness deposed the he know the accused who is the housewife and he also know son and daughter of the accused. The husband of the accused died about 3 months back and pleads ignorance about son of the accused working as a Software Engineer. The complainant deposed he knows the husband of the accused and accused is also having 8 acres farm land at Kunigal is not within the knowledge of this complainant. This witness deposed he was alone at the time of giving loan to the accused and loan was given in the year 2016, but he cannot give the date. The amount is given at about 4 pm, there are no other documents got from the accused. This witness admits in page 3 of his cross-examination signature at Ex.P. 1(a) differs from Ex.P.2(a). The complainant gives explanation that he informed the accused with regard to the Ex.P. 1 and 2 cheques, but it has been denied. He has convinced the accused and accused stated that she is having different accounts in different banks and she signs differently concerning cheques. This witness deposed his father and husband of the accused running Kuvempu Madare Gruha Nirmana Sahakara Sangha, he replies he does not know the name of the society. This witness deposed his father applied for 2 sites in the Society, but he does not know in which year it has been applied. To the suggestion that there is a loss in the Society and as such his father demanded amount since amount site has not been given, 6 Crl.A.No.1042/2021 witness replies may be. Witness volunteers that accused husband has suffered loss and father of the complainant was asked amount to recoup the same. This witness denies in that regard only he made this false complaint though there is no any relationship of borrowing amount. This witness deposed only through telephone father of the complainant had asked amount. This witness deposed name of accused husband is Puttaswamy and he was the member in the society, he had died on 1.5.2018, his reply is he does not know the date, but know he died. This witness denies other suggestions made by the learned counsel for appellant with regard to amount of Rs. 22 lakhs was in the account of accused as on April 2016. Witness replied he does not know , The PW1 denies accused had no any intention or necessity to borrow amount from the complainant. This witness denies the cheques which were in the office placed by the husband of the accused, the same cheques have been misused by filing this false complaint is denied.
10. Accused is examined as DW.1, she deposed in consonance with defense that Ex.P.1 bears her signature, Ex.P.2 is not signed by her. This witness deposed that cheques were in the possession of her husband, it has been misused by the complainant and she does not know how it has came to the hands of the complainant. This witness deposed she never borrowed 3 lakhs and her son being a Software Engineer gets salary of Rs. 3 lakhs. This witness deposed her husband died on 1.5.2018 and contends there is no legally recoverable debt, as such she is not liable to pay any amount. In the cross-examination she deposed she studied upto SSLC and she is a house wife and she does not 7 Crl.A.No.1042/2021 know bank transaction. She denies she borrowed any amount. This witness deposed her husband used to lookafter the financial transaction of the family. She deposed she can produce the bank statement of the year 2016 from January to December upto 2020. Similarly deposed she can produce the bank statement of Cooperative Bank. She gives the address mentioned in the cause title being address where she is residing. She admits the address are one and the same as suggested in the cross-examination and cause title. This witness deposed only on 11.1.2022 she vacated the house and replies when notice has been issued she was not in the house. But she denies other suggestions made by the learned counsel for the respondent. She denies she has not taken any action against the complainant being not known. Witness admits her husband was DGM of BHEL. This witness deposed her husband was running the Cooperative Society and he was the President. This witness deposed about the business of the Society. This witness pleads ignorance about payment made by the complainant`s father in the Society to purchase 2 sites in the year 1991 and 1999. This witness deposed till the death of her husband he was not the President. This witness denies the Society was running under loss and there was necessity to borrow amount to keep alive Society. This witness denies her husband had went to the house of the complainant and asked for 3 lakhs. This witness denies an amount of Rs. 3 lakhs has been given and it has been given to her. This witness deposed signature on Ex.P. 2 is not hers and she cannot say it is whose signature. She admits both the cheques are belong to her account. This witness denies though she had signed the cheques she has deposing falsely that the 8 Crl.A.No.1042/2021 signature on both the cheques are not of her. This witness deposed her son is working in Gupta Manthan Company and earning 3 lakhs, but she has not placed any document in that regard. She deposed she has also not produced document to show she is having 8 acres of land at Kunigal.
11. The learned counsel for appellant submit the trial court has failed to consider the aspect that the complainant did not advance the amount as complained, the accused has no any necessity to borrow such a huge amount. The cheuqe has been presented after death of the husband of the accused. The observation of the trial court that the notice is served is also opposed to facts as deposed by the accused she was not residing there. Further the discussion made in para 17 and 18 of the judgment are opposed to facts. The relying of the citations 2006 (4) KCCR 2375 in case of Mr. Umraz Khan vs. A.Jameel Ahmed and another by the trial court and once posting made to the correct address then acquittal cannot be made as service deemed to be proved is not proper. The complainant has admitted the signature found on 2nd cheque is not of the accused. Therefore accused is to be acquitted.
12. On going through the material on record and the cheques issued is dated 14.5.2018. The accused has specifically contended she was not looking after the financial transaction , but her husband was looking after the same. This witness deposed in her cross-examination her husband died on 1.5.2018, the cheques have been presented only on 14.5.2018 within 15 days from the date of death of her husband. The notice has been issued to the accused. The notice has been returned as not claimed. The 9 Crl.A.No.1042/2021 accused in her cross-examination has specifically deposed she was residing in the premises till 11.2.2020 . Therefore the notice being issued on 9.6.2018 accused was in the same address is admitted. Therefore the discussion made by the trial court that the notice has been duly served seems reasonable. The citations relied by the trial court to consider the service of notice is correct. There is no any discrepancy in the service of notice.
13. On going through the material on record and the cheque Ex.P.1 it is dated 14.5.2018, further it is not a CTS cheque. The RBI has made mandatory to use the cheques which are CTS after April 2013. Therefore the cheque is an old cheque, but not a cheque issued as on its date namely 14.5.2018 is evident. When a person has lost her husband within 15 days she had issued cheques for repayment on 14.5.2018 becomes doubtful. The accused has specifically admitted her signature on Ex.P.1. Further accused has also admitted Ex.P.2 is the cheque belong to her account. However the accused has submitted the signature found on the same is not of herself. The complainant has also admitted signature found on Ex.P.2 is not similar to that of signature of accused. Therefore on going through Ex.P.1 and 2 the cheques are issued on different dates but not on the same date is evident from the record as on 14.5.2018. In the case on hand the cheque No.1 is not a cheque of CTS. Therefore though the learned counsel for appellant has not taken any specific ground in the appeal memo, but this court is duty bound as a general law the fact of Notification of RBI applies to date of cheques. Ex.P. 1 being issued duly becomes doubtful is the firm opinion of this court. Secondly admittedly cheque No.2 is not issued by the accused by 10 Crl.A.No.1042/2021 signing duly. Under these circumstances the contentions raised by the learned counsel for the complainant that the citations relied by the trial court and the presumption drawn are in favor of the complainant cannot be considered. Infact when the accused has denied her signature on Ex.P.2 it is the duty of the complainant to prove that cheque is belong to the accused only and the signature is also of the accused only. When the ingredients of offence punishable u/sec. 138 of NI Act is not proved as per Sec. 142 of NI Act then the burden shifts on the complainant to prove that accused is responsible in Ex.P. 2 to pay the amount as claimed. Under the circumstances and also by relying on the circular of the RBI, there are no reasonable grounds even for the trial court to convict the accused. The observation of the trial court by relying on bunch of citations in para 12 and drawing presumption is not in accordance with law. Infact when the signature of the cheque itself is not prove the presumption drawn by the trial court is opposed to facts. For better appreciation, in this regard the Circular of Reserve Bank of India is extracted hereunder;
"RESERVE BANK OF INDIA www.rbi.org.in RBI/2012-13/444 DPSS.CO.CHD.No. 1622/ 04.07.05 / 2012-13 March 18, 2013 The Chairman and Managing Director / Chief Executive Officer All Scheduled Commercial Banks including RRBs / Urban Co-operative Banks / State Co-operative Banks / District Central Co-operative Banks/Local Area Banks Madam / Dear Sir 11 Crl.A.No.1042/2021 Standardization and Enhancement of Security Features in Cheque Forms/Migrating to CTS 2010 standards A reference is invited to our circular DPSS.CO.CHD.No. 955/04.07.05/2012-13 dated December 14, 2012. On a review of the progress made by banks so far in migration to CTS-2010 standard cheques and in consultation with a few banks and Indian Banks Association, it has been decided to put in place the following arrangements for clearing of residual non-CTS-2010 standard cheques beyond the cutoff date of March 31, 2013.
a. All cheques issued by banks (including DDs / POs issued by banks) with effect from the date of this circular shall necessarily conform to CTS-2010 standard.
b. Banks shall not charge their savings bank account customers for issuance of CTS-2010 standard cheques when they are issued for the first time. However, banks may continue to follow their existing policy regarding cheque book issuance for additional issuance of cheques, in adherence to their accepted Fair Practices Code.
c. All residual non-CTS-2010 cheques with customers will continue to be valid and accepted in allclearing houses [including the Cheque Truncation System (CTS) centers] for another four months up to July 31, 2013, subject to a review in June 2013.
d. Cheque issuing banks shall make all efforts to withdraw the non- CTS-2010 Standard cheques in circulation before the extended time line of July 31, 2013 by creating awareness among customers through SMS alerts, letters, display boards in branches/ATMs, log- on message in internet banking, notification on the web-site etc. e. A progress report in this regard to be submitted to this department in the format prescribed in the annex, enabling monitoring of the progress made by banks in respect of migration to CTS-2010 standard cheques.
f. In addition, the bank-wise volume of inward clearing instruments 12 Crl.A.No.1042/2021 processed in the Cheque Processing Centers will be monitored with respect to the CTS-2010 / non-CTS-2010 standard cheques presented on them.
g. No fresh Post Dated Cheques (PDC)/Equated Monthly Installment (EMI) cheques (either in old format or new CTS-2010 format) shall be accepted by lending banks in locations where the facility of ECS/RECS (Debit) is available. Lending banks shall make all efforts to convert existing PDCs in such locations into ECS/RECS (Debit) by obtaining fresh mandates from the borrowers.
2. The above instructions are issued under section 18 of the Payment and Settlement Systems Act 2007 (Act 51 of 2007).
3. Please acknowledge receipt and confirm compliance. Yours faithfully, (Vijay Chugh) Chief General Manager Encl: Annex3 Report showing the progress made in the issuance of CTS-2010 standard cheques and replacement of non-CTS-2010 standard cheques for the month of ................
(Consolidated report to be submitted by the corporate/head office of all cheque issuing banks to the Department of the Payment and Settlement Systems, Central Office, Reserve Bank of India, Mumbai before 10 of the succeeding month)
1. Name of the Bank :
2. Date with effect which the bank has commenced issuing CTS- 2010 Standard cheques across all branches :
3. Number of accounts to which CTS-2010 standard instruments are yet to be issued 13 Crl.A.No.1042/2021
a) Savings Bank Accounts :
b) Business Accounts :
4. Briefly describe the efforts taken by the bank to replace the non- CTS-2010 standard cheques with the CTS-2010 standard compliant cheques."
14. On going through the material on record the contentions raised by the appellant that cheque previously given has been misused later. After the RBI circular the period of any cheque will be only for 3 months. However the cheque given well before 2013 has been presented in the year 2018. Therefore the contention raised by the counsel for the appellant that the cheque has been misused seems reasonable. The signature found on Ex.P.2 is not the signature of the appellant is the contention of the appellant. In this regard this court wants to rely on decision of Hon`ble Supreme Court of India in Crl.A Nos. 1870-1909 of 2012 in case of M/s Laxmi Dyechem vs. State of Gujarat and other wherein it is held;
Relying upon the decision of this Court in Vinod Tanna & Anr. v. Zaher Siddiqui & Ors. (2002) 7 SCC 541, the High Court has taken the view that dishonour of a cheque on the ground that the signatures of the drawer of the cheque do not match the specimen signatures available with the bank, would not attract the penal provisions of Section 138 of the Negotiable Instruments Act. According to the High Court, the provisions of Section 138 are attracted only in cases where a cheque is dishonoured either because the amount of money standing to the credit to the account maintained by the drawer is insufficient to pay the cheque amount or the cheque amount exceeds the amount arranged to be paid from account maintained by the drawer by an agreement made with the bank. Dishonour of a cheque on the ground that the signatures of the drawer do not match the specimen signatures available with the bank does not, according to the High Court, fall in either of these two contingencies, thereby rendering the prosecution of the respondents legally impermissible.
14Crl.A.No.1042/2021 Under the circumstances on the basis of the material on record the trial court has failed to appreciate the fact that as the cheque is a non CTS cheque, there arise no any liability against the accused since such a cheque is invalid in the eye of law. Hence when the complainant failed to prove that the amount is a legally recoverable debt, the case of the complainant with regard to dishonor of cheques and presumption to be drawn in his favor is no any relevance. Therefore this court in a similar set of facts by following the Hon`ble High Court in 2022 (2) KCCR 1651 Dharwad Bench in case of Sameer Rafiq Mulla vs. Asif Abdulhamid Misrikoti in Crl.A. No. 2681/2013 dated 27.8.2021 has upheld the acquittal of the accused when he has discharged that there is no legally recoverable debt. It is held that;
Criminal Appeal No. 2681 of 2013, decided on 27.08.2021 "NEGOTIABLE INSTRUMENTS ACT, 1881-Section 138 and 139-Acquittal-Complainant alleged to have advance loan to accused-But not mentioning date and amount of loan in complaint-Capacity of complainant to lend money and transaction in question found to be doubtful- Accused rebutting presumption in favour of complainant- Complainant failing to establish that cheque in question was issued in discharge of legally enforceable debt-Held, judgment of acquittal does not call for interference."
14. In the present case similarly the accused has proved that no any legally recoverable debt. The trial court erred in not appreciating the facts in its proper perspective. Hence the present appeal deserves to be allowed and the order of the trial court is to be set aside. Therefore, impugned judgment and order of sentence of trial court is not in accordance with law which called for 15 Crl.A.No.1042/2021 interference of this court and the accused has to be acquitted for the offence punishable u/sec.138 of NI Act. Accordingly, point No.1 and 2 are answered in the affirmative.
15. POINT NO.3; In the light of my finding on point No.1 and 2, this court proceeds to pass the following;
ORDER Application filed by the appellant U/sec. 5 of the Limitation Act is hereby allowed.
Appeal filed by the appellant/accused is hereby allowed. Impugned judgment and order of sentence of trial court passed by 23rd ACMM Bengaluru in CC No. 21725/2018 on 9.11.2021 is hereby set aside.
The accused is acquitted for the offence punishable u/sec. 138 of N.I. Act.
As per the stay order passed by this court, if any amount is deposited by the accused the same shall be refunded to the accused as per procedure established under law, after the appeal period is over.
Send back TCR along with copy of this judgment to trial court to take further action in the matter.
(Dictated to the Judgment Writer, transcript thereof is corrected, signed and pronounced by me on this the 29 th day of December , 2022) (Rajesh Karnam K.) LXIX Addl.C.C. & Sessions Judge, Bengaluru.