Bangalore District Court
Smt. Kristin @ Kristi vs Sri. D. Manjunath on 19 November, 2020
1 Crl.A.No.25043/2018
AT MAYOHALL UNIT, (CCH-29) BANGALORE.
Present: Sri. Krishnaji Baburao Patil, B.Com.,LL.B,(Spl.)
Dated: This the 19th day of November 2020
Criminal Appeal No.25043/2018
Appellant: Smt. Kristin @ Kristi,
W/o Sri. Arogya Raju,
Aged about 42 years,
R/at No.501, 6th Main,
2nd Cross, Vinayaka Layout,
Doddanakundi Extension,
Chinnappanahalli,
Marathahalli,
Bangalore-560 037.
(By pleader: Sri. L. Naveen Kumar)
V/s
Respondent: Sri. D. Manjunath,
S/o Sri. Dasappa,
Aged about 49 years,
R/at No.47, 8th Main,
Vinayaka Layout,
Doddanakundi Extension,
Chinnappanahalli,
Marathahalli,
Bangalore-560 037.
(By pleader: Sri. Manje Gowda S.B)
2 Crl.A.No.25043/2018
Date of Institution of the 23.3.2018
Appeal
Nature of the (Suit or pro- Judgment passed in
note, suit for declaration C.C.No.56575/2016
and possession, suit for dtd:24.2.2018 on the file
injunction, etc.) of LVIII Addl. CMM,
Bengaluru.
Date on which the 19.11.2020
Judgment was pronounced
Year/s Month/s Days
Total duration 02 07 26
JUDGMENT
The present appeal is filed by the Appellant against the Respondent being aggrieved by the order of conviction in C.C.No.56575/2016 by order dtd: 24.2.2018by the LVIII Addl. CMM, Bangalore.
2. The facts in brief of this case is that the Complainant filed a complaint alleging that the Complainant and the Appellant are known persons and Appellant is the Respondent's friend. Earlier to this transaction, the Respondent and Appellant had financial transaction. The Appellant approached the 3 Crl.A.No.25043/2018 Respondent in the first week of May 2016 and requested a hand loan of Rs.4,00,000/- to meet her urgent financial commitments and clear some other loans. The Respondent/Accused agreed to repay the said loan with interest at 24%. Inpite of repeated demands made by the Respondent, the Appellant has not repaid the loan amount. Ultimately, the Appellant/Accused issued cheque No.444548 dtd: 1.9.2016, of which the Respondent presented the cheque for encashment on 1.9.2016, but the cheque was dishonored for the reasons 'Funds Insufficient' on 15.9.2016. Thereafter, the Respondent got issued legal notice on 16.9.2016. The Appellant nor repaid the amount nor replied the said notice and hence he has filed private complaint.
3. Thereafter, the Trial Court after taking cognizance of the offence, issued summons to the Accused/Appellant.
4. The Accused appeared through her Counsel and got enlarged on bail and after trial the Accused/Appellant was convicted for the offence punishable under Section 138 of Negotiable Instrument Act.
5. The Appellant got examined himself as DW.1 and got 4 Crl.A.No.25043/2018 marked Ex.D.1 to Ex.D.7. The Respondent got examined himself as PW.1 and got marked Ex.P.1 to Ex.P.6.
6. Being aggrieved by the said Judgment of conviction the Accused/Appellant filed the present appeal on the following grounds:
1) The Judgment passed by the Court below is not a speaking one. AS the Respondent has not proved the case behind reasonable doubts.
2) The Hon'ble Trial Court has committed an error and failed to appreciate the admission given by the Respondent before the Trial Court, while cross-examination of PW.1, he clearly admitted that the Appellant had deposited amount of Rs.3,50,000/-, in deposition of PW.1 at Page No.6 in Para No.15, which acts very clearly goes to show that, there was debt between the Appellant and Respondent. And further the Hon'ble Trial Court, while passing judgment clearly observed in Page No.6 at Para No.15, however the Trial Court failed to appreciate the admissions given by the Respondent/Complainant. In this background interference of this Hon'ble Court very much 5 Crl.A.No.25043/2018 required.
3) The Appellant further contention before the Trial Court that the Respondent has no capacity to lend the money to the Appellant, as admission of the Respondent in his deposition he has not doing any work and he is basically handicapped and further he has receiving Rs.30,000/- rent from respective tenants, but he did not produce single documents in respect of his earnings. However, the Trial Court fail to appreciate which aspect.
4) The Appellant further contention before the Hon'ble Trial Court at a same year the Respondent had lend the amount of Rs.4,00,000/- to the Appellant and another Rs.4,00,000/- to the another person, in respect of which transaction the Respondent filed the case against the Appellant and as well as Sagaya Mary before the Hon'ble LVIIIth ACMM, Bangalore, as per the Respondent admission he has no earnings, when things stood, how could Respondent lend the amount of Rs.8,00,000/- to the Appellant and another person, in respect of this aspect Appellant has produced the Complaint copy in C.C.No.56575/2016 has been produced as Ex.D.2, but Trial Court 6 Crl.A.No.25043/2018 fail to appreciate the Ex.D.2.
5) The Appellant further submit that the Respondent is doing illegal money lending business in local, he has been habit of collecting the blank signed cheques from the respective borrowers, even after repayment of the entire loan the Respondent use to harassing the people by threatening, he would filing cheque bounce cases against them, because of harassment of Respondent one person by name Jayaraj committed suicide in respect of this incident criminal case is pending against the Respondent, thus the Respondent misused the blank signed cheque of the Appellant, which was given for security purpose an earlier point of time.
6) The Appellant further submit that, during the course of cross-examination the Respondent categorically admitted that he had only one transaction with the Appellant and further in his deposition admitted that he had received Rs.3,50,000/- from the Appellant, when such being the case how could the Respondent file this case against the Appellant, which facts clearly goes to show that the Respondent had misused the blank signed cheque of the Appellant to harass the Appellant.7 Crl.A.No.25043/2018
7) The Appellant further submit that the Respondent filed the case against the Appellant to take revenge and it is not legally recoverable debt, therefore please to set aside the conviction order passed by the Trial Court.
8) The Trial Court failed to appreciate the evidence of the Accused, as the Accused very clearly established before the Court that either Complainant or in any other documents the Respondent has not stated, when did he paid disputed amount to the Appellant, with regard to that no evidence and no documents, which clearly disclose that, however Trial Court has not considered this aspects.
9) The Trial Court has passed impugned Judgment without appreciating the case of the Accused, who deposed in the examination-in-chief as DW.1 and also exhibits produced by the Appellant.
10) The Appellant has liberty to urge further grounds in respect of the case at the time of the arguments.
11) In view of the matter, the Judgment convicting the Appellant/Accused for the offence under Section 138 of the 8 Crl.A.No.25043/2018 Negotiable Instrument Act., instead of acquitting her under said alleged offence is illegal, improper, opposed to law and probabilities and weight of the evidence in the case as such it is liable to be reversed. Hence prayed to allow the appeal.
7. In pursuance of the summons the accused has appeared through her counsel. She has denied the substance of accusation made against her. In order to prove the case, the Complainant got examined himself as PW.1 and got marked documents as per Ex.P.1 to Ex.P.6 and the side of the Complainant was closed. The statement of accused under Section 313 of Cr.P.C., was recorded. The accused got herself examined as DW.1 and got marked documents as per Ex.D.1 and Ex.D.7 and closed her side.
8. After hearing the arguments on both the sides, the Trial Court has found the accused guilty of the offence under Section 138 of the Negotiable Instrument Act and convicted the accused.
9. Being aggrieved with the said Judgment, the accused preferred an Appeal. In pursuance of the notice the Respondent 9 Crl.A.No.25043/2018 has appeared through his counsel. The Lower Court records were secured.
10. Heard both the sides.
11. On the basis of the above facts, following points that arise for my consideration are:-
1) Whether the Complainant/Respondent proves that the cheque issued by the Accused is for legally enforceable debt and the same was dishonored for the reasons "Funds Insufficient"
and the Accused/Appellant has not complied with the demand notice even after 15 days of the receipt of notice and thereby committed the offence punishable under Section 138 of Negotiable Instrument Act?
2) It is necessary to interfere with the order passed by the Trial Court?
3) What Order?
12. My answer to the above points are as under:
Point No.1 : In the Affirmative.
Point No.2 : In the Negative.
Point No.3 : As per final order
10 Crl.A.No.25043/2018
for the following:
REASONS
13. Point Nos.1 and 2:- The parties are referred to, as per the ranks before the Trial Court, for the sake of convenience.
14. The case of the Complainant is that in the first week of May 2016 the Accused who is known to the Complainant availed hand loan of Rs.4,00,000/- and thereafter for repayment of the said loan, she has issued cheque bearing No.444548 dtd:
1.9.2016 and when the said cheque was presented for collection by the Complainant through his banker, the same was dishonored for the reasons "Funds Insufficient" and thereafter, even after the 15 days after notice issued, the Accused has not complied with the notice and has given untenable reply. The defence of the Accused which is clear from the evidence produced by her is that Complainant is a money lender, on 8.9.2012 she has availed loan of Rs.2,00,000/- and the Complainant after deducting interest at the rate of 6% paid Rs.1,88,000/- through open cheque of IDBI Bank and as a security for the said loan the Complainant has taken three blank 11 Crl.A.No.25043/2018 cheques from the Accused out of which one cheque was encashed by the Complainant in the month of October 2012 towards interest and one cheque was returned to him when he repaid the loan and another cheque was alleged to have been misplaced and the Complainant has not returned the said cheque. Again on 7.1.2013 the Accused has availed further loan of Rs.1,00,000/- and the Complainant after deducting the interest has paid Rs.50,000/- through IDBI Bank open cheque.
But the Complainant has stated that the Accused has availed loan of Rs.4,00,000/-. She has stated that she has not availed said loan and she has repaid the loan amount through cheque and in cash. The Complainant has misused the blank cheque given by her and hence prayed for acquitting her.
15. The Complainant in support of his case examined himself as PW.1 and in his examination-in-chief reiterating the contention taken by him by way of affidavit and got marked Ex.P.1 to Ex.P.6. The said witness is cross-examined by the defence counsel in detail. During the cross-examination, the Complainant has stated that he is not doing any work. He is handicapped. But he is receiving rent of Rs.30,000/- per month. 12 Crl.A.No.25043/2018 There are buildings in his name and in the name of his father. He studied up to SSLC. He is earning annual income of Rs.2 lakh to Rs.2.5 lakh. He is not income tax assessee. Further he has stated that he is having a building at 6 th Main Road, 1st Cross, Vinayaka Layout, Channappana Halli, consisting of three storied and in all there are five tenants and he is receiving Rs.30,000/- rents. This contention is not denied by the Advocate for the Accused. During the cross-examination, Bank Statement was confronted to this witness as per Ex.D.1. It was suggested to this witness that the Accused has deposited Rs.3,50,000/- to his Bank. But, he denied the same. He hash admitted that Accused has deposited twice Rs.50,000/-. But, the same was in respect of this transaction. Further denied all other suggestions made to him. The Accused in support of her case, got examined herself as DW.1 and reiterated the contents of the defence taken by her in present case. This witness is cross-examined by the Advocate for the Complainant. In the cross-examination, she has stated that Complainant known to her since last 18 years. She has admitted that she has admitted in the said case that unless earlier transaction of Rs.3,00,000/- and in the notice she has 13 Crl.A.No.25043/2018 stated that she has issued cheques to the Complainant. Further the Accused got examined and got marked Ex.D.3 to Ex.D.5, when this witness was further examined by the Advocate for Complainant. Again DW.1 was further examined and Ex.D.6 and Ex.D.7 are got marked, in respect of these documents also there is is detailed cross-examination made by the Advocate for the Complainant. On the basis of the oral and documentary evidence produced by the Complainant and the Accused, the Trial Court has come to the conclusion that the cheque issued by the Accused is in respect of legally enforceable debt and the Accused has not repaid the amount after 15 days of receipt of notice and hence committed the offence punishable under Section 138 of Negotiable Instrument Act and convicted her as per the impugned order. In the present Appeal, at the time of arguments, the Advocate for the Appellant has argued that the Complainant himself has admitted that he is not doing any work and he has no capacity to pay Rs.4,00,000/- as a loan to the Accused. But, in this regard, during the evidence and in the reply notice also the Accused has admitted the earlier transaction between the Complainant and the Accused. The 14 Crl.A.No.25043/2018 Complainant has contended that he is having building in his name and in the name of his father and he is receiving rental income and this fact is not denied by the Advocate for the Accused, during the cross-examination of PW.1 or in the evidence of DW.1. In respect of financial capacity of PW.1, nothing was stated by the DW.1 in the examination-in-chief. The Advocate for Appellant has also contended that the Complainant is a money lender and he used to take blank signed cheque from the borrower and charging the exorbitant rate of interest and in support of his contention, she has produced document to show that the Complainant has filed similar case against the other persons and also one criminal case was referred and documentary evidence produced as per Ex.D.6 and Ex.D.7 to show that, because of harassment of the Complainant one person has committed suicide. All these facts are not necessary to decide the present case. In order to succeed in the case, the Accused has to prove that the cheque issued was in respect of the legally enforceable debt. She was in due of any money to the Complainant and the Complainant has misused the said cheque. In the present case, it is the case of the Accused that in 15 Crl.A.No.25043/2018 all he has given three cheques and one cheque was encashed by the Complainant towards payment of interest and one cheque was destroyed by the Complainant at the time of repayment of the loan and another cheque was misused by the Complainant by saying that the same is misplaced. If such contention taken by the defence, DW.1 is agreed, then what made him to not to instruct his banker to stop payment of cheque in order to avoid misuse of the said cheque. She has not stated as to when she has exactly issued the cheque to the Complainant and also she has not stated when she has repaid the said loan to the Complainant. If at all, the Complainant has stated to the Accused that after repayment of the loan, the said cheque was misplaced, then the Accused would have instruct his banker to stop payment in respect of the said misplaced cheque if presented by anybody for collection. No such attempt was made by the Accused in the present case. Only because, the allegation made by the Accused against the Complainant that he is money lender, the same cannot be accepted bin the absence of any evidence produced by the Appellant/Accused. It is also not correct to say that, only because the Complainant 16 Crl.A.No.25043/2018 hash lent money to the Accused and someone other person and in the absence of any evidence to show that the Complainant is charging exorbitant interest for the amount lent by him, the contention of the Accused that the Complainant is money lender and charging exorbitant rate of interest cannot be accepted. Even if it is so, there is competent authority to take action against him by filing appropriate case against the Complainant. In the present case, it is sufficient, if the Complainant is able to prove the ingredients of Section 138 of Negotiable Instrument Act against the Accused, then he is entitled for the relief prayed for in the present case. The Trial Court has considered all the oral and documentary evidence in a right prospect and come to right conclusion. The Trial Court interpret the conclusion of Section 138 of Negotiable instrument Act and comes to the right conclusion. In view of the above discussion, this Court is of the view that the Accused has committed the offence punishable under Section 138 of Negotiable Instrument Act as contemplated under the Negotiable Instrument Act. All the ingredients of Section 138 of Negotiable Instrument Act have been complained with by the Complainant and the Trial Court 17 Crl.A.No.25043/2018 has rightly convicted the Accused. Hence, there is no necessity to interfere with the Judgment and Order passed by the Trial Court. Hence, I answer Point No.1 in the Affirmative and Point No.2 in the Negative.
16. Point No.3:- In view of the above discussion, I proceed to pass the following:
ORDER The Appeal filed by the Appellant under Section 374(3) of Cr.P.C., is dismissed.
The Judgment and sentence dtd: 24.2.2018 passed by the Hon'ble LVII Addl. CMM, Mayo Hall, Bengaluru, in C.C.No.56575/2016 convicting the Accused is confirmed.
The bail and surety bonds of the Accused furnished as per order dtd: 24.2.2018 passed by this Court are canceled.
Send back the Trial Court records along with the copy of the Judgment to the Lower Court, after the appeal period is over.
[Dictated to the Stenographer, computerized transcript thereof corrected, signed and then pronounced by me in the open Court on this the 19th day of November 2020].
[Krishnaji Baburao Patil], XXVIII Addl. City Civil & Sessions Judge, Mayo Hall, Bengaluru.18 Crl.A.No.25043/2018
Judgment pronounced in open court as under (vide separate order):-
ORDER The Appeal filed by the Appellant under Section 374(3) of Cr.P.C., is dismissed.
The Judgment and sentence dtd: 24.2.2018 passed by the Hon'ble LVII Addl. CMM, Mayo Hall, Bengaluru, in C.C.No.56575/2016 convicting the Accused is confirmed.
The bail and surety bonds of the Accused furnished as per order dtd: 24.2.2018 passed by this Court are canceled.
Send back the Trial Court records along with the copy of the Judgment to the Lower Court, after the appeal period is over.
[Krishnaji Baburao Patil], XXVIII ADDL.CITY CIVIL JUDGE BANGALORE.19 Crl.A.No.25043/2018