Bangalore District Court
Sri.G.Mathaiah vs Smt.G.A.Mangala on 24 January, 2020
IN THE COURT OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU
(CCH.20)
:Present:
Sri.D.S.VIJAYA KUMAR, B.Sc., LL.B.,
XXVI Addl. City Civil & Sessions Judge, Bengaluru
Dated this the 24th day of January, 2020
Crl.Appeal No.25005/2018
Appellant:- Sri.G.Mathaiah
Aged about 57 years,
S/o G.Angaiah,
R/a. No.4/15, Shivakaminagar,
P.R.C.Colony, Thanakankulam
Post, Madurai-6, Tamil Nadu.
[By P Assts-Advocate]
Vs.
Respondent:- Smt.G.A.Mangala,
Aged about 33 years,
C/o Subramani,
R/a. No.44, Madhu Reddy
Layout, New City Range,
Kithaganur, K.R.Puram Post,
Bangalore-11.
[By Sri.JMU-Advocate]
2 Crl.A.No.25005/2018
JUDGMENT
The Appellant/Accused has filed this Criminal Appeal under Section-374(2) of the Cr.P.C., questioning the Judgment and Order of Conviction and sentence dtd.03.01.2018 passed in C.C.No.53007/2014 by the LVII Additional Chief Metropolitan Magistrate, Mayo Hall, Bengaluru, wherein the appellant/accused has been convicted for the offence u/s.138 of Negotiable Instruments Act,1881 and sentenced to pay a fine of Rs.5,000/- with default sentence of simple imprisonment of 3 months and ordered payment of compensation of Rs.8,55,000/- to the complainant, with default sentence of simple imprisonment of one year.
2. Brief facts of the Appeal Memo of the Appellant, are as below:-
3 Crl.A.No.25005/2018
The complainant/respondent has filed complaint alleging the offence u/s.138 of Negotiable Instruments Act, that respondent and appellant were friends for five years and Accused was known to complainant through his son. In the month of May 2011, Accused and his son requested the complainant to advance a sum of Rs.10.00 lakhs stating that they are starting a Software company in the name and style 'L.M.Infotec Solutions', at II Stage, Indiranagar, Bangalore and assured to repay the amount within 2-3 months. Believing same, complainant/ respondent advanced a sum of Rs.10.00 lakhs to Accused and his son in the first week of June 2011 by pooling all her savings and borrowings.
After three months she demanded repayment of amount, but Accused and his son postponed repayment on one pretext or other. After 4 Crl.A.No.25005/2018 complainant made repeated requests, finally, Accused and his son Vijay Kumar in the last week of December 2013 issued two individual post dated cheques for Rs.5.00 lakhs each in the name of complainant, one cheque belonged to Accused and another to his son and they assured that cheques would be honoured. Complainant presented cheque bearing No.791675 dtd.
27.01.2014 for Rs.5.00 lakhs issued by Accused for encashment, but to her utter surprise said cheque was returned dishonoured with endorsement 'Funds insufficient'. Drawee bank had returned the cheque with endorsement dtd.
03.02.2014. Thereafter, complainant sent legal notice dt.18.02.2014 to Accused by RPAD intimating the fact of dishonour of cheque and demanded payment of cheque amount together with interest. But, Accused failed to pay the 5 Crl.A.No.25005/2018 cheque amount though he received notice on 26.02.2014 as per postal acknowledgement which was returned to complainant. Since accused failed to comply with notice he thereby committed the offence u/s.138 of N.I.Act. On the said grounds, Accused/appellant having been prosecuted, he has appeared before the Trial court and pleaded not guilty and thereafter complainant has testified as PW.1 and produced documents. The Trial court after completion of the evidence and arguments convicted the Accused/Appellant for the offence u/s.138 of Negotiable Instruments Act, 1881. Hence, the Accused/Appellant has preferred this appeal on the grounds that the impugned the judgment and order of conviction and sentence is very much capricious, arbitrary and opposed to law; that complainant had no financial capacity to 6 Crl.A.No.25005/2018 advance Rs.10.00 lakhs; and as per her evidence in the cross examination her husband would get salary of Rs.35,000/- per month, but is not depending on her husband's income and she is depending on the income of her son, her son works in some private company and owns land; he grows grape and other crops in the land; that her son does not possess any land she has failed to produce any document before the court to show that her son is possessing land; as per the endorsement issued by the drawee Bank cheque has been returned for the reason 'funds insufficient'. In the reply notice sent by accused he has clearly contended that he was looking forward to raise loan from some private financiers and in that connection, he had kept his son's two signed blank cheques and other documents and he had also kept his own cheque. 7 Crl.A.No.25005/2018 Complainant who admitted that she is a friend of Accused's daughter was visiting the house of accused's daughter where the above documents had been kept. Complainant has stolen said cheque and also cheque of his son and filed a false complaint. Trial court has not appreciated the above said facts and evidence related to the same in right perspective and therefore, impugned judgment is not sustainable and sought for allowing the appeal and setting aside the judgment and order of conviction and sentence.
3. L.C.R. has been secured.
4. Heard arguments and also perused the records.
5. Now the points that arise for my consideration are:-
8 Crl.A.No.25005/2018
1. Whether the respondent/ complainant has proved that Appellant/Accused had issued Ex.P.1 Cheque for legally enforceable debt?
2. Whether the respondent/ complainant has proved that the appellant/Accused has committed the offence under Sec.138 of Negotiable Instruments Act beyond reasonable doubt?
3. Whether the impugned judgment and sentence is illegal and calls for interference?
4. What order?
6. My answer to the above points are as follows:-
POINT No.1 :- In the negative
POINT No.2 :- In the negative
POINT No.3 :- As per final order
9 Crl.A.No.25005/2018
POINT No.4 :- As per final order
for the following
REASONS
7. Point Nos.1 to 4:- Appellant/Accused has been prosecuted for the offence u/s.138 of Negotiable Instruments Act, on the allegations that respondent and appellant were friends for five years and Accused was known to complainant through his son. In the month of May 2011, Accused and his son requested the complainant to advance a sum of Rs.10.00 laks stating that they are starting a Software company in the name and style 'L.M.Infotec Solutions', at Ii Stage, Indiranagar, Bangalore and assured to repay the amount within 2-3 months. Believing same, complainant/respondent advanced a sum of Rs.10.00 lakhs to Accused and his son in the first week of June 2011 by pooling 10 Crl.A.No.25005/2018 all her savings and borrowings. After three months she demanded repayment of amount, but Accused and his son postponed repayment on one pretext or other. After complainant made repeated requests, finally, Accused and his son Vijay Kumar in the last week of December 2013 issued two individual post dated cheques for Rs.5.00 lakhs each in the name of complainant, one cheque belonged to Accused and another to his son and they assured that cheques would be honoured. Complainant presented cheque bearing No.791675 dtd. 27.01.2014 for Rs.5.00 lakhs issued by Accused for encashment, but to her utter surprise said cheque was returned dishonoured with endorsement 'Funds insufficient'. Drawee bank had returned the cheque with endorsement dtd. 03.02.2014. Thereafter, complainant sent legal 11 Crl.A.No.25005/2018 notice dt.18.02.2014 to Accused by RPAD intimating the fact of dishonour of cheque and demanded payment of cheque amount together with interest. But, Accused failed to pay the cheque amount though he received notice on 26.02.2014 as per postal acknowledgement which was returned to complainant. Since accused failed to comply with notice he thereby committed the offence u/s.138 of N.I.Act. On the said grounds, Accused/appellant having been prosecuted, he has appeared before the Trial court and pleaded not guilty and thereafter complainant has testified as PW.1 and produced cheque said to have been issued by Accused for Rs.5.00 lakhs as per Ex.p.1, counterfoil of challans as per Ex.P.2, return memo issued by Bank as per Ex.p.3, copy of legal notice sent to Accused as per Ex.P.4, postal receipt as per Ex.P.5 and postal 12 Crl.A.No.25005/2018 acknowledgement regarding service of notice on the accused as per Ex.P.6, reply notice sent by Accused as per Ex.P.7.
8. In the statement recorded u/s.313 of Cr.P.C. Accused has denied entire case of complainant. Accused has not chosen to lead any defence evidence.
9. Upon considering the records, oral and documentary evidence and arguments, Trial court has held Accused guilty of the offence u/s.138 of N.I.Act and imposed fine of Rs.5,000/- with default sentence of three months of simple imprisonment and awarded compensation of Rs.8,50,000/- u/s.357 of Cr.P.C. and directed accused to undergo simple imprisonment for one year in the event of not paying the compensation amount.
13 Crl.A.No.25005/2018
10. Now, being aggrieved by the said Judgment of conviction and sentence, in this appeal accused is laying challenge to the same on the ground that complainant had no financial capacity to advance Rs.10.00 lakhs. According to her evidence in the cross examination her husband would get salary of Rs.30,000/- to Rs.35,000/- per month, but she is not depending on her husband's income and she is depending on the income of her father, her father works in some private company and owns land; he grows grape and other crops in the land. But, despite the accused contending that her father does not possess any land she has failed to produce any document before the court to show that her father is in possession of land. As per the endorsement issued by the drawee Bank, cheque has been returned for the reason 'Funds 14 Crl.A.No.25005/2018 Insufficient'. In the reply notice sent by accused he has clearly contended that his son was looking forward to raise loan from some private financiers to start a software business and in that connection, his son had obtained two signed blank cheques and other documents and he had also kept his own cheque in the Accused's daughter's house. Complainant who has admitted that she is a friend of Accused's daughter was visiting the house of accused's daughter frequently where the above documents had been kept. Complainant has stolen said cheque and also cheque of his son and filed a false complaint. Trial court has not appreciated the above said facts and evidence related to the same is not appreciated in right perspective and therefore, impugned judgment is not sustainable.
15 Crl.A.No.25005/2018
11. Accused counsel has placed reliance on the decision of Accused in the case of Basalingappa Vs. Muibasappa, in Crl.A.No.636/2019 DD 09.04.2019 wherein at para-3 it is observed that when accused questioned financial capacity of the complainant if there is no proof of financial capacity, High Court holding that Trial court judgment is perverse is incorrect. Relying on the said judgment, learned counsel for Accused argued that the Accused in this case has clearly denied financial capacity of complainant and complainant has not produced any material before the court to show her financial capacity and hence presumption u/s.139 of N.I.Act is clearly rebutted by the Accused and preponderance of probability which is the standard of proof for defence required for the 16 Crl.A.No.25005/2018 accused required has been established, but same has not been considered by Trial Court.
12. Learned counsel for respondent/ complainant submitted arguments and filed written submission justifying the impugned judgment and sentence. Learned counsel argued that initial burden lies on the accused to prove that defence taken by him is probable and also that he had no legally enforceable debt or liability for issuing cheque, but accused has failed to discharge the said initial burden. Evidence on record clearly shows that the cheque in question belongs to accused and signature therein is affixed by him. In the cross examination of complainant/PW.1 signature in cheque is not denied. In the cross examination of complainant/ PW.1 signature in Ex.P.1 cheque is not seriously 17 Crl.A.No.25005/2018 challenged, instead suggestion is made that his son had kept signed blank cheques at his daughter's house and complainant being a friend of his daughter was visiting his daughter's house and taking advantage of the same, she has stolen cheque and filed a false complaint. Said contention put forth in the cross examination of PW.1 shows that signature in the cheque is affixed by Accused and if the accused wanted to challenge the same, he was required to have sought for examination of the signature through expert, which has not been done. On the said grounds, learned counsel for respondent has sought for dismissing the appeal by contending that the impugned judgment and conviction is in accordance with law.
18 Crl.A.No.25005/2018
13. I have perused records and considered oral and documentary evidence and also arguments of both sides.
14. Firstly, there is no dispute that complainant has complied with sec. 138 (a) to (c) and 142 of N.I.Act in filing the complaint before the Trial Court. I have verified the date of cheque, date of return memo, legal notice and date of filing of compliant and satisfied that the above provisions were complied with before filing the complaint.
15. In the cross examination of Complainant/ PW.1, it is elicited that Accused is permanent resident of Madurai. His daughter is residing at UCO Bank Colony, Ramamurthy Nagar, Bangalore. It is the clear case of complainant that Accused and his son were often visiting their 19 Crl.A.No.25005/2018 daughter's/sister's house at Bangalore and complainant has admitted that Accused daughter Lakshmi was her friend. And through her Accused/Appellant had also become known to her and Accused's son had also become friend.
16. As regards financial capacity she has deposed that her husband is drawing Rs.30-35 lakhs per month and denied that his income is not sufficient to take care of her family. She has stated that she is not depending on the income of her husband, but she is depending on her father's income who is working in a private company and possessing 15 acres of land in Gujuru, where they are growing grapes, coconut and vegetables. That is complainant's case about her financial capacity for advancing the amount in question. Of-course, she has not produced 20 Crl.A.No.25005/2018 documents before the court to show that her father is possessing lands.
17. As far as issue of Ex.P.1 Cheque is concerned Accused/Appellant has not disputed that the said cheque belongs to him, but he has denied issuing cheque. Therefore, it is necessary to dwell upon whether defence put forth that the signature in Ex.P.1 is not his signature and cheque which had been kept at his daughter's house has been stolen by complainant is corroborated by preponderance of probability. Accused has received legal notice about dishonour of cheque and sent reply notice as per Ex.P.7 to complainant's counsel. At paras-1 and 2, pages-1 and 2 of the reply notice, accused has put forth following defence:-
"1. Our client is surprised and shocked to receive the notice under reply. Your client 21 Crl.A.No.25005/2018 has not disclosed you the true facts to issue the notice under reply. Our client has not issued any cheque to your client. Your client is not a friend of our client as alleged in the notice under reply. Your client is a friend of our client's daughter who is residing at Bangalore. As your client used to come to our client's daughter's house, our client also met your client few times when our client had come down to Bangalore. Our client's son had started the software company in the name and style 'LM Infotec Solutions" at Indiranagar, Bangalore and when he wanted to expand his business he approached some private financiers for loan. It appears that the private financieries to advance the loan amount have demanded to furnish few documents like cheques, stamp paper, On demand, our client's cheque and some original papers of the property standing in the name of our client as security. Accordingly, our client had obtained two blank signed cheques bearing 791675 and 791676 drawn on State Bank of India, Siruthozail Kapalpur, D-36 Sidco Industrial Estate Kappallur, Madurai, Tamilnadu from our client along with original Sale Deed of 22 Crl.A.No.25005/2018 the property situated at Thirali village, Madurai, Tamilnadu to furnish the same to the financiers at the time of availing loan. As the private financiers refused to advance the loan on the said documents, it was informed to our client by his son that he has kept all the documents including the cheques in our client's daughter's house.
2. Only on receipt of the notice under reply our client came to know the fraud played by your client and the documents stolen from our client's daughter's house. Immediately on receipt of the notice under reply and on enquiry our client and his family members came to know that all the above said documents are missing from their house where it was kept and your client with a fraudulent intention has stolen the said documents and has misused the blank signed cheque of our client".
As per the above defence taken in the reply notice, his son started business of software company in the name and style 'LM Infotech 23 Crl.A.No.25005/2018 Solutions". His son needed finance for expansion of business and he had approached private financers and they had asked for cheques of accused, stamp paper, On Demand Promissory Note and also his document about property. Therefore, Accused's son had obtained two blank signed cheques from him along with original sale deed of the property and with the same, he had kept his own cheques including Ex.P.1 at Accused's daughter's house in Bangalore. Since loan transaction with private financiers did not materialize his son had left above said documents at Accused's daughter's house itself and complainant being friend of his daughter was frequenting his daughter's house. Thus, he has taken defence that complainant by misusing the opportunity has stolen Ex.P.1 cheque and presented same for encashment. It implies that 24 Crl.A.No.25005/2018 accused is contending that among the cheques kept at his daughters house his cheques were signed cheques, but his sons cheques were blank and unsigned.
18. Importantly, in the cross examination of PW.1 there is no clear denial of Ex.P.1(a) signature attributed to him in Ex.P.1 cheque, which admittedly belongs to him. It amounts to non controverting complainant's evidence that Accused issued said cheque presumably by affixing signature to complainant. So, above suggestion will have to be considered from the above angle which in turn would clearly establish that signature in the cheque actually belongs to him. It is to be noted that his original contention is that the signed cheques and documents which he had kept at his draught's house have been stolen by complainant by taking advantage of 25 Crl.A.No.25005/2018 the fact that she was visiting accused's daughter's house who was her friend.
19.From overall facts and circumstances, I am of opinion that complainant has duly proved beyond reasonable doubt that Accused has issued Ex.P.1 cheque and signature therein is that of the accused. In view of complainant establishing same, as a natural corollary a legal presumption will have to be raised that the said cheque at Ex.P1 has been issued by Accused for discharging his Legally enforceable debt or liability. Of-course, case of complainant is that Accused and his son had together borrowed Rs.10.00 lakhs. Whereas complaint averments corroborates complainant's case that she had actually advanced Rs.10.00 lakhs to accused and his son. In these circumstances, I am of opinion 26 Crl.A.No.25005/2018 that contention of Accused/Appellant that complainant did not have financial capacity to advance loan amount cannot be accepted. Therefore, I am of the view that evidence on record clearly establishes the offence u/s.138 of NI.Act beyond reasonable doubt.
20. Learned Trial Judge has imposed compensation of Rs.8,55,000/- as against the cheque amount of Rs.5.00 lakhs. Admittedly accused was looking forward for finance to expand his son's software business and hence loan is availed for business purpose. Cheque is of the year 2014 and impugned judgment is dtd. 3.1.2018. Considering the time gap and that accused had taken loan for commercial purpose, I am of opinion that compensation awarded by the Trial court does not require interference. However, default sentence of one year imposed 27 Crl.A.No.25005/2018 for non payment of compensation amount seems to be on higher side. I am of opinion that same may be reduced to six months. Barring same I find no merits in the appeal.
Consequently, Point Nos.1 & 2 are answered in the affirmative and point No.3 in the negative, except regarding modification of default sentence for non payment of compensation amount.
21. Point No.4:- For the foregoing reasons, I proceed to pass the following :-
O R D E R Criminal Appeal filed by the Appellant under Sec.374(2) of the Cr.P.C., is hereby dismissed.
Judgment of conviction & sentence and award of 28 Crl.A.No.25005/2018 compensation against Appellant dated. 03.01.2018 passed in C.C. No.53007/2014 by the Learned LVII Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru is hereby confirmed, by modifying the default sentence of simple imprisonment of one year in respect of default in payment of compensation. It is modified and ordered that Accused in default to pay the compensation as ordered, has to undergo simple imprisonment for six (6) months, instead of one (1) year.29 Crl.A.No.25005/2018
The Bail bonds and surety bonds of the Appellant are discharged.
Retransmit the LCR along with a certified copy of this judgment to the Lower court without delay, by not later than 30 days.
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(Dictated to the Stenographer, transcript thereof, is corrected and then pronounced by me in the open court on this the 24th day of January, 2020)
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(D.S.VIJAYA KUMAR) XXVI Addl. City Civil & Sessions Judge Mayo Hall, Bengaluru.30 Crl.A.No.25005/2018