Bangalore District Court
/ Smt.Jayamma W/O M.B.Shivanna vs Aged About 53 Years on 28 September, 2016
IN THE COURT OF LXV ADDL CITY CIVIL AND
SESSIONS JUDGE; BANGALORE CITY
(CCH.NO 66)
PRESENT
SRI.N.R.CHENNAKESHAVA B.A.,LL.B.,
LXV ADDL CITY CIVIL & SESSIONS JUDGE,
BANGALORE
Dated this the 28th day of September, 2016
CRL.APPEAL.NO.286/2015
Appellant / Smt.Jayamma W/o M.B.Shivanna,
Accused: Aged about 53 years, R/at No.110, 3rd
Cross, Muneshwara Block,
Mahalakshmipuram, Bengaluru.
(By Sri. Basavaraj.K.M. Adv.)
V/s
RESPONDENT/ Jagadish S/o Late Gangappa, Aged
Complainant: about 54 years, Ra/t No.548, Shiva
Krupa, 7th Main, Sadashivanagara,
Bengaluru.
(By Sri.Vijay Kumar.K, Adv)
*****
JUDGMENT
Appellant preferred this Appeal against respondent, u/Sec. 374(3) of Cr.P.C, being aggrieved by the impugned judgment of conviction & sentence passed by learned XX ACMM, Bangalore, in C.C.No.8804/2013, dated:28.1.2015. 2 Crl.A.No.286/2015
2. Before the trial court, Appellant and respondent were the accused and complainant respectively. Hence I would like to refer parties in this Appeal, with reference to ranks, which they held in the trial court.
3. Trial court records secured.
4. Brief facts that lead into this Appeal are that:
Complainant filed Private complaint against the accused, u/Sec.200 of Cr.P.C. before the trial Court, alleging that himself and accused are well acquainted with each other. On 19.11.2009 accused requested him to advance hand loan of Rs.26,20,000/- to meet her business requirements and she agreed to repay the same within 18 months, with interest at 18% P.A. That apart on the same day accused by receiving loan amount, she executed Regd Mortgage Deed by depositing title deed of immovable property, in favour of complainant. After several demands, accused issued cheque bearing No.012921 dt.6.6.2011, for Rs.26,20,000/- in favour of complainant, drawn on Tumkur 3 Crl.A.No.286/2015 Grain Merchants Co-operative Bank Ltd, Basaveshwara Nagara, Bengaluru. Complainant presented the said cheque for encashment, through his banker. However, the said cheque dishonoured, for want of funds in the Account of accused. On 5.2.2013 complainant caused legal notice, calling upon the accused to pay the cheque amount, which was duly served on her. Inspite of it, accused neither replied the same nor repaid the cheque amount.
5. Upon presentation of complaint, trial Court took cognizance for an offence P/U/Sec. 138 N.I. Act. After following required procedure, trial court has ordered to register the case and issue process against accused, who appeared through her counsel and defended the case. Complainant himself got examined as PW-1, got marked 8 documents at Ex.P.1 to Ex.P.8. Accused has been examined P/u/Sec.313 of Cr.P.C. she denied the incriminating evidence. In support of defense, accused herself examined as DW1 got exhibited two documents at Ex.D1 and Ex.D2. Trial court after hearing and by 4 Crl.A.No.286/2015 pronouncing judgment, has convicted and sentenced the accused.
6. Being aggrieved by the impugned judgment, accused by preferring this Appeal, sets out the grounds of Appeal, contending that impugned judgment is illegal. Trial court has failed to appreciate the fact that there was no legally enforceable debt. Accused never issued cheque in question to the complainant towards alleged debt. Trial court has failed to provide sufficient opportunity to the accused to establish her defense. There are many of discrepancies and contradictions in the evidence placed by complainant. However, trial court without giving proper reasons, has convicted the accused which is against to law. Therefore, impugned judgment is liable to be set aside. Hence, on these grounds it is prayed the court to allow the Appeal by setting aside the impugned judgment.
7. Per contra, complainant supports the impugned judgment and prays this Court to confirm the impugned judgment.
5 Crl.A.No.286/2015
8. Heard from both side. I have perused the available materials on record. Learned counsel for Accused has also filed a Memo with citations.
9. Now the points that arise for my consideration are:
1. Whether the impugned judgment of conviction and sentence passed by the trial court, in C.C.No.8804/2013, dt.28.1.2015, is illegal, arbitrary and hence calls for interference by this court?
2. What Order?
10. My findings on the above points are :
Point No.1 : In the Negative Point No.2 : As per the final order For the following:
REASONS
11. POINT No.1: I have carefully gone through the complaint, evidence on record, impugned judgment and the grounds urged in the Appeal memorandum.
12. Upon careful scrutiny of materials available on record, it clearly discloses that before filing of complaint, 6 Crl.A.No.286/2015 complainant has complied all the required ingredients u/Sec.138 of N.I.Act and thereby he has discharged his initial burden, as required u/Sec.138 of N.I.Act. More so, this fact is undisputed. In this regard, trial court by appreciating evidence placed by the complainant, has rightly come to the conclusion that he has complied all the required ingredients. Hence, presumption u/Sec.139 of N.I.Act is in favour of complainant. It is relevant to note that very presumption is a rebuttable presumption. Therefore, accused by leading defense evidence or based on available materials on record, has to rebut the very presumption.
13. It is the specific case of complainant that, accused well acquainted with him and on 19.11.2009 she approached him, seeking hand loan of Rs.26,20,000/- to meet her business requirements. Therefore, he advanced loan of Rs.26,20,000/- on the same day. It is also the case of complainant that at the time of borrowing loan amount, accused agreed to repay the said sum within 18 months 7 Crl.A.No.286/2015 with interest at 18 % PA. That apart as a security towards the said sum, she also executed Regd Mortgage Deed dt.19.11.2009 in his favour, by depositing the title deed of immovable property, to which family members of accused are all consented witnesses. Ccomplainant contends that in spite of undertaking by the accused, she failed to repay the loan amount within stipulated time and thereafter accused issued cheque to him at Ex.P.1 bearing No.012921 dt.6.6.2011, for Rs.26,20,000/- and he presented Ex.P.1 for encashment through his banker. However, cheque at Ex.P.1 dishonoured for want of funds in the Account of accused. Thereafter on 5.2.2013 he caused legal notice at Ex.P3, calling upon the accused to pay the cheque amount, which was duly served on her. In spite of it, accused neither replied the same nor return the cheque amount and thereby she has committed an offence alleged.
14. Ex.P.2 discloses that cheque at Ex.P.1 has been dishonoured for want of funds in the bank Account of accused. Coming to Ex.P.7 it also discloses that as a 8 Crl.A.No.286/2015 security towards repayment of cheque amount, accused has executed simple mortgage deed at Ex.P.7, by mortgaging the title deeds in favour of complainant. Recitals at under Ex.P.7 clearly discloses that accused admits the borrowing of cheque amount under Ex.P.1 from the complainant on 19.11.2011. Per contra accused by setting out the defense, would contend that she has not borrowed the alleged sum of Rs.26,20,000/- from the complainant and the cheque at Ex.P.1 has been issued by her to the complainant as a security to the loan borrowed by her son in law Ramakrishna, as during the year 2007 he had borrowed Rs.10,00,000/- from the complainant and towards repayment of said loan, she issued 10 signed blank cheques including cheque at Ex.P1 to her son in law, who in turn handed over Ex.P.1 to the complainant, as a security. She also contends that her son in law has not repaid the loan amount during the year 2009. In this regard negotiations held between her son in law and complainant and as per negotiation, she executed mortgage deed Ex.P.7 in favour of complainant in respect of her house property, however, 9 Crl.A.No.286/2015 she is not due to the complainant. She further contends that cheque at Ex.P1 was issued as a security to the said loan of Rs.10,00,000/- borrowed by her son in law. Therefore accused contends that there was no legally recoverable debt due to the complainant. Hence, she prayed the court to dismiss the complaint. In support of defense, accused herself got examined as DW1 and got exhibited two documents as Ex.D1 and EX.D2. However very defense setout by the accused is not corroborated. More so, complainant also denies the very defense setout by the accused.
15. It is pertinent to note that cheque at Ex.P.1 pertains to the accused and signature found in the Ex.P.1 is not in dispute. That apart, execution of Ex.P.7 by her in favour of complainant is also not in dispute. Though accused sets out the above defense, the same is not corroborated by any independent evidence. On the other hand very defense, clearly discloses that accused had taken 10 Crl.A.No.286/2015 the very contention, only in order to get over from the liability.
16. During the course of argument learned counsel has drawn the following judgments:
1) 2010 Crl.L.J. 1061 Kar.H.C. - Vankatesh Bhatt V/s Rohi Das
2) 2008 AIR SCW 738 Krishna Janardhan Bhat V/s Dattatraya G. Hegde
3) AIR 2006 SC 3366 : M.S. Narayna Menon @ Mani V/s State of Kerala and Anr.
By relying the ratio laid down in the above judgments, learned counsel for accused prayed this court to allow the Appeal and to set aside the impugned judgment.
17. I have gone through the principles laid down in the above judgments. In my view, certainly none of the above case laws applicable to the case on hand, in view of the fact that execution of Ex.P.7 is admitted by the 11 Crl.A.No.286/2015 accused. More so which Ex.P.7 is a regd document. Suffice it to say recitals at Ex.P.7 clearly discloses that the accused admits the debt. Hence, under such circumstances, I am of the considered view that above case laws are not at all helpful to the accused in defending the case. Therefore, I am not relying the above case laws to the case on hand.
18. Trial court by evaluating the evidence placed by the complainant as well as defense set out by the accused, has rightly come to the conclusion that recitals at Ex.P.7 clearly discloses that accused has borrowed loan of Rs.26,20,000/- from the complainant and in relation to the said loan accused has executed Ex.P.7. Hence, contention of accused that she has not borrowed the alleged sum from the complainant, however, Ex.P.7 has been executed by her in favour of complainant as a security towards the loan borrowed by her son in law, which cannot be acceptable at all. Trial court further held that if the defense set up by the accused true, she should have mentioned the particulars at Ex.P.7 about the loan transactions of her son 12 Crl.A.No.286/2015 in law, with the complainant. However, there is no recitals found in Ex.P.7, regarding the loan borrowed by her son in law from the complainant. Trial court has also held that accused has failed examine her son in law to establish the alleged loan borrowed from him by the complainant. On the other hand, except the self testimony of accused, there is no iota of evidence placed by her ,to establish the fact that her son in law had borrowed loan of Rs.10,00,000/- from the complainant and in relation to the said loan transaction, she issued cheque at Ex.P.1 in favour of complainant. It is also relevant to note that complainant has caused legal notice at Ex.P.3. However accused did not replied the same and she kept quite till filing the complaint. It is also relevant to note that Ex.P.7 is a regd document, wherein accused clearly admits the loan transaction. In the present Appeal accused has not made out any reasonable grounds to interfere with the impugned judgment. On the other hand, grounds urged by the accused in this Appeal, which are formal in nature. More so, as far as those grounds is concerned, trial court in its impugned judgment has rightly 13 Crl.A.No.286/2015 assigned sound reasons. Hence, I am of the considered view that re appreciation of evidence on record, do not warrant. Suffice it to say, in the present Appeal there is no question of law involved. Therefore, under such circumstances, this court cannot interfere with the impugned judgment. Trial court by appreciating the evidence on record and by assigning sound reasons, has rightly come to the conclusion that accused has committed an offence p/u/Sec.138 of N.I.Act, since trial court held that cheque at Ex.P.1 has been issued by the accused towards legally recoverable debt borrowed by her from the complainant on 19.11.2009. Therefore, I am of the considered view that at any stretch of imagination, impugned judgment of conviction and sentence passed by trail court, which cannot be interfered with by this court. Suffice it to say, very case of complainant supports with mortgage deed at Ex.P.7, as the very recitals of Ex.P.7 corroborates the very claim of complainant that he advanced loan of Rs.26,20,000/- to the accused on 19.11.2009. Hence, I am of the considered view that 14 Crl.A.No.286/2015 impugned judgment is to be confirmed. For the foregoing reasons, I answer point No.1 in the "Negative."
19. POINT NO.2 : In view of my findings to point No.1, I proceed to pass the following:-
ORDER Appeal preferred by Appellant u/Sec.374(3) of Cr.P.C, is dismissed.
Judgment of conviction and sentence passed by learned XX ACMM, Bangalore, in CC No.8804/2013, dated:28.1.2015, is confirmed.
Re-transmit the Trial Court Records with a copy of this Judgment, forthwith.
*** (Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 28th day of September, 2016) (N.R.CHENNAKESHAVA ) LXV Addl. City Civil & Sessions Judge, Bengaluru 15 Crl.A.No.286/2015 Order pronounced in the open court, vide separately ORDER Appeal preferred by Appellant u/Sec.374(3) of Cr.P.C, is dismissed.
Judgment of conviction and sentence passed by learned XX ACMM, Bangalore, in CC No.8804/2013, dated:28.1.2015, is confirmed. 16 Crl.A.No.286/2015
Re-transmit the Trial Court Records with a copy of this Judgment, forthwith..
(N.R.CHENNAKESHAVA ) LXV Addl. City Civil & Sessions Judge, Bengaluru 17 Crl.A.No.286/2015