Bangalore District Court
Sri.S.Ramanaiah vs Sri.Srinivasamurthy R on 4 January, 2016
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.CHANDRASHEKHAR MARGOOR, B.Sc., LL.B.(Spl)
LXVII ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Dated this the 4th day of January 2016.
Crl. Appeal No.192/2015
APPELLANT : Sri.S.Ramanaiah,
S/o.Sangati Subbaiah,
54 years,
R/at.No.1808/5, 3rd Floor,
Subbaiah Building,
Abbigere Main Road,
Kammagondanahalli,
Jalahalli West, Bengaluru-560 015.
(By Sri.S.K.A.S., Advocate)
.Vs.
RESPONDENT : Sri.Srinivasamurthy R.
S/o.Konaiah,
38 years,
R/at.No.14, 2nd Cross,
Virupakshapura,
Kodigehalli, Jalahalli West,
Bengaluru-560 097.
(By Sri.K.R.T., Advocate)
JUDGMENT
This appeal is preferred by the appellant challenging the conviction judgment passed by the learned XVIII Addl. C.M.M., Bengaluru in C.C.No.10484/2013, dated:13.01.2015.
2 Crl.Appeal No.192/20152. The appellant herein was the accused and respondent herein was the complainant before the trial court. For the sake of convenience, parties would be referred to by the ranks they were assigned before the trial court.
3. Brief facts of the case of the complainant are as under:
The complainant and the accused are known to each other for the last ten years. The accused is doing cement and steel business and for the improvement of his business, he has demanded the complainant for the financial assistance of Rs.2,10,000/-. Accordingly, during the first week of June 2012, the complainant had advanced a sum of Rs.2,10,000/- to the accused and the accused had promised to repay the said amount within three months. After the lapse of three months, when the complainant demanded the accused to repay the loan amount, the accused has postponed to pay the amount on one or the other reasons and finally, the accused had issued two cheques to the complainant bearing No.575193, dated:16.03.2013 for Rs.1,10,000/- drawn on Dena Bank, Peenya Industrial Estate Branch, Bengaluru and another Cheque bearing No.918301, dated:27.04.2013 for Rs.1,10,000/- drawn on Syndicate Bank, Gangamma Circle, Jalahalli, Bengaluru. When the complainant presented those cheques for encashment through his banker namely Lakshmivilas Bank Ltd., MES Road, Muthyalanagara, Bengaluru, the said cheques came to be 3 Crl.Appeal No.192/2015 dishonoured with an endorsements "Funds Insufficient", dated:29.04.2013. Thereafter, the complainant got issued the legal notice, dated:2.05.2013 to the accused calling upon him to repay the cheques amount and in spite of service of the legal notice, the accused has neither replied the said notice nor paid the amount. Hence, the complainant was constrained to file the complaint against the accused under Section 200 Cr.P.C. r/w. Section 138 of N.I.Act.
The learned XII Addl. C.M.M., Bengaluru after taking cognizance and recorded the sworn statement of the complainant and registered the case as C.C.No.10484/2013 and issued summons to the accused. The accused appeared before the court and engaged his advocate and he was enlarged on bail. Thereafter, the learned XVIII Addl. C.M.M., Bengaluru was recorded the plea of the accused and the accused pleaded not guilty and claims to be tried. Thereafter, the complainant was examined himself as P.W.1 and got marked documents Ex.P.1 to P.9. After closure of the evidence of the complainant, the statement of accused under Section 313 of Cr.P.C., was recorded. The accused has denied the incriminating evidence of the complainant. In spite of granting sufficient opportunities, the accused has not led any evidence on his behalf. After hearing both the sides, the learned Magistrate has convicted the accused for the offence punishable under Section 138 of the N.I.Act and sentenced to pay a fine of Rs.2,30,000/-, in default, to 4 Crl.Appeal No.192/2015 undergo simple imprisonment for a period of six months and also ordered that, out of the fine amount, a sum of Rs.2,10,000/- shall be paid to the complainant as compensation and the balance of Rs.20,000/- shall be forfeited to the State.
4. Being aggrieved by the orders of the trial court, the appellant has preferred this appeal on the following grounds.
(1) The complainant has not produced any cogent evidence to show as to how the amount of Rs.2,10,000/- was given to the accused as hand loan on 2.06.2012 and he has not mentioned any details of the handing over of the hand loan either in his complaint or in his notice before the trial court ;
(2) The complainant during the course of his evidence before the trial court has admitted that he has no documents to show the payment of hand loan of Rs.2,10,000/- to the accused and he has also further admitted that there was no any monetary or financial transaction between himself and the accused ;
(3) The complainant has not explained and proved cogently under what circumstances, the cheques in question have come to his custody and he has also further admitted in his evidence that when he allegedly handed over the hand loan to the accused, no documents were got written by him in his favour and that the alleged loan was not given for interest purpose and on these aspects clearly 5 Crl.Appeal No.192/2015 establishes that there was no any loan transaction between the complainant and the accused and accused is not liable to pay any legally recoverable debt to the complainant ;
(4) The trial court has failed to erred in not considering the contention of the appellant that the legal notice was not duly served on him regarding the intimation of dishonoring of the cheques ;
(5) The trial court has erred in relying the provisions of Section 139 of N.I.Act that there is a strong presumption in favour of the complainant that the cheques had been issued in discharge of the debt or liability and the burden to rebut the said presumption is on the accused ;
(6) The trial court has drawn an adverse inference by taking into consideration the statement that two separate complaints against the wife and the son of the accused have been filed by the complainant.
Hence, on all these grounds, the appellant has prayed to allow the appeal by setting aside the impugned judgment passed by the learned XVIII Addl. C.M.M., Bengaluru in C.C.No.10484/2013, dated:13.01.2015.
5. The respondent put his appearance through his counsel. The lower court records were secured.
6. Heard the arguments of both the sides.
6 Crl.Appeal No.192/20157. From the above facts, the points that arise for my consideration are as under:
1) Whether the appellant has proved that there exists legally recoverable debt of Rs.2,10,000/- to the complainant by the accused ?
2) Whether the appellant has made out grounds to interfere with the impugned judgment ?
3) What Order ?
8. My findings on the above points are as follows.
POINT No.1 - In the Negative,
POINT No.2 - In the Affirmative,
POINT No.3 - As per final order,
for the following :
REASONS
9. POINT Nos.1 & 2 : To avoid the repetition of the
reasonings, I have taken up these points together for discussion.
The learned counsel for the appellant has vehemently argued that there is no cogent evidence to prove the existence of legally recoverable debt of Rs.2,10,000/- to the complainant by the accused, as because the complainant has not produced any document to show the alleged lending of the said amount to the accused. The complainant has not mentioned the date of alleged lending of amount to the accused and also the date of issuance of cheque. The complainant is doing Money Lending Business 7 Crl.Appeal No.192/2015 without Money Lending License as he has initiated N.I.Act cases against the accused's son and wife. The complainant is not filing the I.T.Returns, though he has alleged to have lent more than Rs.4,00,000/-, which is unaccounted amount, for that, the provisions of Section 138 of N.I.Act cannot be invoked. Hence, the notice under Section 138 of N.I.Act is not served on the accused. Hence, prayed to allow the appeal by setting aside the impugned judgment and prayed to acquit the accused by dismissing the complaint.
10. Per contra, the learned counsel for the respondent has vehemently argued that the complainant has stated during the cross examination the date of lending of the amount to the accused. The accused has not produced any document to prove his defence that the cheque was issued to the complainant for got becoming the member of the Co- operative Society. The complainant has produced the reply of the postal agency about the delivery of the article vide Ex.P.8. The complainant has produced the Accounts Extract to show that the complainant has withdrawn the amount from his bank account in order to lent to the accused. The accused has not led his defence evidence to rebut the presumption under Section 139 of N.I.Act. Hence, prayed to dismiss the appeal by confirming the lower court judgment.
8 Crl.Appeal No.192/201511. The complainant has not alleged in his complaint on which date he has lent Rs.2,10,000/- to the accused. The complainant even has not mentioned in his notice about the date of lending the amount to the accused. The complainant has also not sworn to an affidavit, which was filed in lieu of his examination-in-chief before the court with respect to the date of alleged lending of the loan amount to the accused. But, for the first time, the complainant has stated before the court during cross examination that on 2.06.2012, he has lent Rs.2,10,000/- to the accused. Exs.P.1 and 2-Cheques are meticulously observed, they revealed that the contents of the said cheques are not written by the same persons with same hand-writing. The complainant has not stated as to whether the accused has filled the said contents or whether he got filled the said contents through some others. There is a variance between the pleadings and the proof. Their Lordships of the Hon'ble High Court of Bombay in the decisions reported in IV 2007 BC 211 (Santhosh Manikrao Gundale .Vs. Rameshwar Vamanrao Tak & another) and also in 2014 AIR SCW 2158 (John K.Abraham .Vs. Simon C. Abraham & another) pleased to held for drawing the presumption under Section 118 r/w. Section 139 of N.I.Act - Complainant not sure as to who wrote the cheque nor aware as to when and where existing transaction took place for which the cheque was issued by the accused. The complainant did not mentioned 9 Crl.Appeal No.192/2015 the date of advance of loan in his complaint and the date of issuance of cheque also not mentioned - Advance of loan as alleged by the complainant not proved. The dictums laid down by Their Lordships are squarely applicable to the facts on hand, as because the complainant's version about the alleged lending of Rs.2,10,000/- to the accused cannot be believable.
12. Normally, the loan transaction will take place with round figure i.e., the loan amount of Rs.1,00,000/-, Rs.1,50,000/-, or Rs.2,00,000/- between the parties. But, the facts on hand, the complainant has alleged that the accused has requested for the complainant to lend Rs.2,10,000/- is highly improbable. The complainant has produced Ex.P.9-Accounts Extract, which reveals that on 2.06.2012, the complainant has withdrawn Rs.2,00,000/- from his account. Now, the complainant is trying to establish that the said withdrawal amount of Rs.2,00,000/- connecting to the case that he has lent Rs.2,10,000/- to the accused during first week of June 2012. If at all, the alleged money transaction was taken place between the complainant and the accused, the complainant should have mentioned in his complaint that on 2.06.2012, he has withdrawn Rs.2,00,000/- from his account and lent Rs.2,10,000/- to the accused by arranging another sum of Rs.10,000/- to it. According to the complainant, he has lent Rs.2,10,000/- to the accused by way of cash. But, Their Lordships pleased to held in the decision reported in 10 Crl.Appeal No.192/2015 AIR 2008 SC 1325 (Krishna Janardhan Bhat .Vs. Dattatraya G. Hegde) that as per Section 269-SS of Income Tax Act, any advance taken by way of loan of more than Rs.20,000/- was to be made by way of account payee cheque only. The complainant has not complied the provisions of Section 269-SS of Income Tax Act. Hence, it creates doubt on the mind of the court about the alleged money transaction between the complainant and the accused. The complainant P.W.1 has categorically admitted in the cross examination that there was no impediment for him to issue cheque for Rs.2,10,000/- in favour of the accused towards the loan.
13. The complainant has admitted in the cross examination that he is working on contract basis at N.S.S.D.C.C. since 14 years and drawing the salary of Rs.20,000/- per month and the salary will be credited to his bank account at Union Bank of India at Koramangala Branch, Bengaluru. He has stated that he has no impediment to produce the account extract of the said bank, but the complainant has produced Ex.P.9-Accounts Extract pertaining to Lakshmi Vilas Bank, wherein he is having the balance to the tune of Rs.41,00,000/- still he has not submitted the I.T.Returns. Therefore, the alleged lending of Rs.2,10,000/- to the accused is unaccounted money. Their Lordships pleased to held in AIR 2009 (NOC) 2327 (Sanjay Mishra .Vs. Ms.Kanishka Kapoor @ Nikki and another) that the failure to disclose the amount in 11 Crl.Appeal No.192/2015 income tax return or books of account of the complainant may be sufficient to rebut the presumption under Sec.139 of N.I.Act. The amount advanced by the complainant to the accused was unaccounted cash amount, it was not disclosed in Income Tax Returns, hence, the liability to repay unaccounted cash amount cannot be said to be legally enforceable liability within the meaning of explanation to Sec.138 of N.I.Act. Therefore, it creates doubt in the mind of the court about the genuine money transaction between the complainant and the accused. The complainant has fails to remove the suspicious clouds that arose in proving legally enforceable debt by the accused to the complainant.
14. No doubt, there is a presumption under Section 118 r/w. Section 139 of N.I.Act that the cheques Exs.P.1 and 2 are issued for discharge of alleged legally recoverable debt by the accused to the complainant. But, the complainant has not produced any other document to show that he has lent Rs.2,10,000/- to the accused.
But, the accused has taken the defence that he has issued the blank cheques Exs.P.1 and 2 to the complainant to got become a member of the Co-operative Society, but that was denied by the complainant. The said defence of the accused may not be ruled out, though the accused has not entered the witness box to adduce his defence evidence. Their Lordships of the Apex Court in the decision reported 12 Crl.Appeal No.192/2015 in AIR 2008 SC 1325 (Krishna Janardhan Bhat .Vs. Dattatraya G. Hegde) pleased to held that :
" Dishonour of cheque - Defence -
Proof - Accused not required to step into witness box - He may discharge his burden on basis of materials already brought on record - Question whether statutory presumption rebutted or not - Must be determined in view of other evidence on record".
The dictum laid down by Their Lordships is squarely applicable to the facts of the case.
15. The learned counsel for the appellant has contended that the notice is not duly served on the accused. But, the complainant has produced the office copy of the notice vide Ex.P.5 and also produced the RPAD receipt vide Ex.P.6 and the complaint lodged to the postal department vide Ex.P.7 and the reply of the postal department vide Ex.P.8 do go to show that the notice is delivered on 3.05.2013. Therefore, the contention of the appellant about non-service of notice cannot be accepted, as because the accused has not taken any steps to call upon the postal agency to establish the fact of non-service of notice.
16. The complainant P.W.1 has categorically admitted that he has initiated the proceedings under Section 138 of N.I.Act against the accused and his wife and son. That admission itself is sufficient to come to the conclusion that 13 Crl.Appeal No.192/2015 the accused is doing Money Lending Business without having any license. Therefore, I am of the considered view that the complainant has failed to prove that there exists legally recoverable debt by the accused to the complainant. Therefore, the interference of this court is warranted, as the lower court has erroneously come to the conclusion to convict the accused without appreciating the materials on record in proper perspective. Hence, I answered the Point Nos.1 and 2 accordingly.
17. POINT No.3 : In view of the findings on the Point Nos.1 and 2 as above, my finding on this point is as per following :
ORDER The Criminal Appeal filed by the appellant is allowed. Consequently, the impugned judgment passed by the learned XVIII Addl. C.M.M., Bengaluru in C.C.No.10484/2013, dated:13.01.2015 is set aside.
Acting under Section 255(1) of Cr.P.C., the accused is acquitted for the offence punishable under Section 138 of N.I.Act. His bail bond and surety bond stands cancelled.
Send back the records to the lower court along with the copy of this judgment.
(Dictated to the Judgment-writer on computer directly, later corrected and then pronounced by me in the open court on this the 4th day of January 2016) (CHANDRASHEKHAR MARGOOR) LXVII Addl.City Civil and Sessions Judge, BENGALURU.