Bangalore District Court
Sri Gurushastrimuth vs Major on 17 September, 2018
IN THE COURT OF 55TH ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE (CCH-56)
: Present :
Smt. H.G.Nagarathna, B.A., LL.B.,
55th Addl. City Civil & Sessions Judge,
Bangalore
: Crl. Appeal No. 1552/2016 :
Date: The 17th day of September 2018
APPELLANT/ Sri Gurushastrimuth,
ACCUSED : Major, Proprietor,
Age: 58 years,
M/s. Shaswath Apperells,
No.41, II Floor, VI Main,
IV Block, Rajajinagar,
Bangalore-560010.
(By: Sri M.N. Nehru, Advocate)
- V/s -
RESPONDENT/ Sri. C.R. Channabasappa
COMPLAINANT : S/o Late Rajappa Setty C.,
Age: 47 years, r/at No.466/B,
15th Cross, Ideal Home,
Rajarajeswarinagar,
Bangalore-560039.
(By: Sri A.N. Radha Krishna, Advocate)
JUDGMENT
This is a Criminal Appeal filed by Appellant/Accused against Respondent/complainant u/sec 374(3) R/W 386 of the Cr.P.C, 1973 challenging the Judgment and order dated 24-11- 2016 passed by the learned 13th ACMM, Bangalore in C.C. No.30090/2000 convicting the Appellant/accused.
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2. For the sake of convenience the "Appellant/accused"
and "Respondent/complainant" are hereinafter referred to as "accused" and "complainant" respectively.
3. The facts leading to this Crl. Appeal, in brief, are as under:-
3(a) The accused was licence of the Garment Factory of the complainant viz., M/s Trends Wear International, Mahalakshmi Layout, Bangalore-560086. During the period of his lease, the accused had borrowed hand loan of Rs.1,36,000/- from the complainant during the 2nd week of December-1995, promising to repay the same with interest, but thereafter he did not repaid the loan amount. On the other hand he went on postponing the same on one pretext or the other. During last week of December-1998, when the complainant demanded the accused to repay the loan amount, then the accused had issued cheque bearing No.362399, dated 15-12-1998 along with covering letter assuring about honouring of the cheque. On the assurance of the accused, when the complainant has presented the said cheque for encashment on 18-12-1998 through his banker Apex Bank, Basaveswara Nagar Branch, Bangalore-79, the said cheque was dishonoured with share 'Funds Insufficient' vide memo dated: 18-12-1998. Hence, the complainant caused legal notice against the accused
-3- Crl. Appeal No. 1552/2016 on 01-01-1999 by RPAD and COP calling upon the accused to pay the cheque amount by giving statutory time of 15 days. The notice sent against the accused under RPAD was returned by the postal department with shara 'Not claimed' on 19-01-1999, but notice sent under COP has been delivered to the accused. In- spite of aware of the legal notice the accused did not come forward to comply the demands of notice. Hence, having no other go the complainant approached this court with this complaint against the accused alleging that, the accused has committed an offence p/u/sec. 138 of Negotiable Instruments Act.
3(b) The trial court took cognizance of offence and issued process against the accused. The accused appeared before the trial court through his counsel and got released on bail. The substance of accusation was read over and explained to accused. They pleaded not guilty and claimed to be tried. Accordingly the trial court has tried the case.
3(c) The complainant, in order to prove his case, got himself examined as PW1 and examined one more witness on his behalf as PW2 and produced 12 documents such as cheque, Bank endorsement, Legal Notice, COP receipt, Postal envelop cover, Letter, Complaint, Letters and Order copy of W.P.No.30642/2001
-4- Crl. Appeal No. 1552/2016 .... etc. and got them marked as Exs.P.1 to 12. The statements of accused u/sec. 313 of Cr.P.C were recorded. Then the accused has examined himself as DW1 and also examined one more witness DW2 on his behalf and produced three documents such as Chief examination by way of affidavit, Memorandum of understanding and Bank Statement and got them marked as Ex.D.1 to Ex.D.3.
3(d) The learned trial judge heard both side arguments and raised the following points for consideration:
1) Whether the complainant proves beyond all shadow of doubt that, the accused has committed an offence punishable under section 138 of Negotiable Instruments Act?
2) What order?
3(e) The learned trial judge has answered the point No.1 is in the affirmative and has convicted the accused of the offence p/u/sec. 138 of N.I Act by the impugned Judgment and order dated. 24-11-2016. The learned trial judge has ordered that the accused shall pay the fine of Rs.2,72,000/-; in default of payment of said fine amount the accused shall undergo simple imprisonment for a period of six months; out of the said amount, accused shall paid Rs.2,67,000/- to the complainant as compensation, as
-5- Crl. Appeal No. 1552/2016 provided u/sec.357 of Cr.P.C. and Rs.5,000/- shall be remitted to the state as fine.
4. The accused, being aggrieved by the Judgment and order dated. 24-11-2016, has preferred this appeal on the following amongst other grounds:
1) The trial court has ignored the facts of the case narrated by itself in the brief facts of the case in the impugned judgment. The impugned judgment is not sustainable in law or on facts of the case.
It is against the procedure available in Cr.P.C.
2) There is no liability on the part of appellant/ accused. The complainant has failed to prove the existence of debt. The trial court has wrongly concluded that the cheque in question is issued for discharge of legally recoverable debt.
3) The trial court has failed to understand the facts of the case and it has failed to appreciate the evidence. The impugned judgment is perverse and is contrary to the law.
4) It is submitted that the Hon'ble Court of Karnataka has clearly made a note that, "to consider by examining the signatures on the agreement" this clearly indicates that, if there is no execution of agreement the question of survival of two cases does not arise. Therefore the Hon'ble High Court of Karnataka specifically directed to the trial court to considered the signature of the agreement. But the central Forensic Science Lab, has clearly given opinion vide letter dt:11-08-2014, No. CFSL(H) 1452/ OBC/408/2014/BH-103/2014/2567 that the Ex.P.1 licence agreement contenting two sheet dt: 01- 07-1994 is a photo-static re-production and the disputed signature on the said documents are in the form of photo static re-production and it do
-6- Crl. Appeal No. 1552/2016 not afford suitable date for compression and further stated that, for a thorough and scientific examine and opinion their originals may be needed and the authority has directed to the Hon'ble Trial Court to send the said original lease agreement to the laboratory to give exact opinion. Even though the trial court without obtaining any further expert opinion from the laboratory with respect of the lease agreement has concluded the opinion that the accused is guilty for the offences. Which clearly indicates that, the conclusion of the trial court is not proper under the eye of law.
5) It is submitted that, in the another opinion vide CFSL(H)1452/DOC/408/2014/BH-103/2014, dt.
12-08-2015 has also reveals that, contemporaneous admittedly genuine signature of the person concerned viz., Sri.C.P.Channabasappa (Complainant) are needed for further examination. Therefore it is very clear that, the trail court has not obtained expert opinion report pertaining into the disputed document. Even though without obtaining the same the trial court concluded the trial and passed judgment of conviction order is not proper under the eye of law.
6) The complainant has admitted the cross- examination that apart from the transaction alleged in the two cases has not done any other transaction with accused, the complainant has further admitted that on 23-6-1994 there is memorandum of understanding took place in between myself and accused.
7) The Lakshminarayana examined on behalf of the complainant as PW2 and he has clearly stated that, the two cheque vide No.362400 and 362399 pertaining into two cheque cases belongs to the account of Mr.Shashwati Apparels and the said cheque book issued on 26-7-1995. If it is so, the question of issuance of the said cheque in the end of the year 1998 and
-7- Crl. Appeal No. 1552/2016 beginning of the year 1999 and does not arise at all.
8) As per the complainant the accused was due more than 9 lakhs at the time of giving hand loan to the accused even though the complainant has not obtained any documents or post dated cheque at the time of availing the hand loan, this itself clearly creates doubt with respect of the entire case of the complainant. Apart from that the complainant has admitted that complainant has took the factory from the accused during the year 1996, even at the time of return of factory to the complainant the accused did not issue any cheques by calculating all the arrears and after lapse of 2 ½ year the accused issued two cheque to the complainant. This clearly indicated that the complainant has created a false story only for the purpose to get wrongful fain from the accused.
9) The complainant has admitted that, he has taken the factory premises from Jnanaprakash and complainant used to pay a monthly rent to the said Jnanaprakash. But complainant has not produced any document including rent receipt to substantiate the same.
Because of these above mentioned grounds, the Appellant/ accused has prayed for allowing the appeal and for setting-aside the impugned Judgment and Order.
5. In pursuance of notice issued in this appeal case, the respondent/complainant has appeared through his Advocate.
6. The lower court records are secured.
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7. I have heard the arguments of learned counsel for respondent/complainant. Inspite of giving sufficient time, the learned Advocate for appellant/accused has not advanced his side argument. It is taken as NIL.
8. Now the following points will arise for my consideration and determination:
:POINTS:
1) Whether the respondent/complainant has proved the existence of a legally enforceable debt due from appellant/accused and that the cheque in question has been issued for discharge of the same?
2) Whether the appellant/accused has made-out the good and sufficient grounds to set-aside the impugned judgment and order?
3) What order?
9. My findings on 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 for the following:
REASONS
Point Nos.1 to 2 :-
10. This is an appeal filed by the appellant u/sec. 374(3) r/w. 386 of Cr.P.C to set-aside the orders passed by the trial court
-9- Crl. Appeal No. 1552/2016 in C.C.No.30090/2000 dt.24-11-2016 in convicting the accused/ appellant for the offence u/sec.138 of N.I. Act and sentence him to pay a fine of Rs.2,72,000/- in default thereof he shall undergo simple imprisonment for six months and Rs.5,000/- shall be remitted to state.
11. The appellant has urged many grounds in the appeal stating that at no point of time there was an lease agreement executed in between the parties the appellant and the respondent. The said agreement is not proved with cogent evidence. The appellant has not even lead any evidence of the witness as shown in Ex.P.1 and further contended that signature on the agreement is not proved as though it was sent to forensic lab. The FSL authorities stated that photo-static reproduction of the document cannot be suitably and scientifically examined for comparison and requested to send the original of the document. Original document has not sent to the FSL report for hand-writing expert. There was a memorandum of understanding in between the appellant and respondent as per Ex.D.1 and the appellant had taken garmentary factory and at that point of time the KSFC official approached and stated that entire garment factory in hypothecation to KSFC and they have seized the factory and put the lock. Therefore, appellant approached the respondent. He has not interested to continue the
-10- Crl. Appeal No. 1552/2016 factory and requested for cancellation of Ex.D3 MOU. The trial court has not consider this aspect and there are difference in between the documents originals were not referred to handwriting experts and also urged other grounds in para No.10 to 34.
12. Now let us scrutiny the evidence on records and the evidence adduced by parties. Earlier in the year 2007 this matter was acquitted by the trial court for the offence u/sec.138 of N.I. Act. Against that order Crl.Rev.Pet. filed by the complainant before the Hon'ble High Court of Karnataka. Hon'ble High Court of Karnataka in Crl. Appeal No.1773/2007 clubbed with Crl. Appeal No.1852/2007 pleased to set-aside the Judgment and acquittal order and remanded the matter before the trial court for fresh disposal and send back the file for fresh disposal and get an opinion of expert and to form an opinion whether the case is civil nature that could be adjudicated by parties elsewhere or it is a straight case that could be dealt by him in accordance with law. PW1 has stated that accused and he were friends and on 7-1- 1994 he leased out garment factory to the accused for a period of 2 years and accused borrowed loan of Rs.1,36,000/- and promised to repay the said amount in the December 1985, but he fail to do so and issued a cheque of Rs.1,36,000/- dt.25-12-1998 drawn on Canara Bank, Rajajinagara branch. The cheque was presented
-11- Crl. Appeal No. 1552/2016 was bounced due to insufficient funds. Legal Notice caused. No reply and not repaid the amount. Legal Notice not claimed. Hence complaint against the accused u/sec.138 of N.I.Act. Ex.P.1 to Ex.P.5 marked. In the cross-examination it has stated that at the time of lending the loan nobody was present and no documents were taken and it is also stated that there is a rent agreement in between appellant and respondent and he has paid rental of Rs.5,000/- per month and further stated that he had not received monthly rent from the appellant and 1994 to 1996 the accused did not pay the rents and the respondent had invested Rs.25 to 40 lakhs in order to install machineries and there was a lease agreement in between the parties, expect the lease agreement no other documents were executed and he denied the accused did not taken any hand loan of Rs.1,36,000/- and he has misused the cheque in question.
13. The evidence of DW1 that he know the complainant and he was doing the granite export business in the year 1994. The complainant requested to purchase the M/s.Trendsware International Garment Factory. But as the appellant have no knowledge he insisted Mr.Ajjegowda to purchase the same and there was M.O.U entered in between the parties. Ex.D1(a) and Ex.D.1(b) are the signatures and also requested the respondent to
-12- Crl. Appeal No. 1552/2016 look after the garment factory and fixed salary at Rs.15,000/- per month and also provide a car. There was the factory was running he came to know the entire unit hypothecated to KSFC and the KSFC has seized and locked and thereafter the appellant requested for cancellation of M.O.U. and there was some arrears of salary pending payable to the respondent. Accordingly 8 cheques were issued. The appellant was having a sufficient source of income at the time of execution of cheque. He was paying monthly rent of Rs.2,700/- to the premises and Rs.2,00,000/- advance. After cancellation of the M.O.U the appellant requested return of money of Rs.4,25,000/-, but not paid. These are all chief examination of PW1.
14. In the cross-examination the cheque in question of Ex.P.1 are belongs to him and signature in Ex.P.1(a) and Ex.P.2(a) might be belongs to him and agreed that cheques Ex.P.1 and Ex.P.2 are belongs to his bank account. Much has been examined with regard to the M.O.U. On reading up of defence taken up by the accused it establishes that the appellant purchased the garment factory at the pressure of respondent and one Mr.Ajje gowda and memorandum of understanding came to be executed and the appellant was managing as a supervisor in the said factory for a monthly rent of Rs.15,000/- and also
-13- Crl. Appeal No. 1552/2016 provided a car to move on and thereafter the appellant came to know that the garment factory was hypothecated to KSFC. Accordingly he cancelled the agreement in between the parties and he never borrowed money from respondent as his financial possession was strong and it is also his contention is that the cheque was stolen and misused by the respondent when those cheques were kept in garment factory when it was run in. If really the cheques were stolen what prevented the appellant to file a criminal case against the respondent before the proper forum soonafter he received the legal notice as the same was not claimed and sent through under certificate of posting. The appellant is a businessman will not kept silent. It really there was a breach of trust caused by the respondent garment factory by stolen the cheques in question. Therefore view from any angle since the respondent has proved the cheque in question was issued for legally recoverable debt and none other transactions. So far as the documents FSL reports are concern Q1, Q2, Q5, Q6 and Q7 are belongs to appellant, who signed on S1 to S6. Therefore, the document Ex.D1 the FSL authorities admitted the signature of the accused. Though the appellant tried presumption u/sec.139 of N.I. Act. But the contention taken with regard to the memorandum of understanding and non-availment of loan cannot
-14- Crl. Appeal No. 1552/2016 be accepted in comparing with cheque in question. Hence the respondent has proved all the ingredients of sec.138 of N.I act to held that there was a loan transaction between the parties and to clear of that loan the appellant had executed a disputed cheque which bears his signature and same was presented for encashment was bounced due to insufficient funds. There may be several transactions held between the appellant/respondent during the time of issuance of disputed cheque, but as the appellant clearly agreed in the cross-examination that the signature on cheque bears him and account mentioned is of him. So far as stolen of the cheques are concerned the appellant kept silent the reason best known to him only. Therefore, view from any angle the defence taken by the appellant is not co-related with the execution of cheque in question and Respondent failed to prove the rebuttal presumption u/sec.139 of N.I. Act. Hence the orders of the trail court is based upon sound principles of law and fact on the foregoing reasons. No interference is called for. Hence, for these reasons the point no.1 is answered in the affirmative and the point Nos.2 is answered in the negative. Point No.3:
15. Keeping in view the findings already given on point Nos.1 and 2 above, I proceed to pass the following:
-15- Crl. Appeal No. 1552/2016 ORDER This Crl. Appeal No.1552/2016 filed by appellant/Accused is dismissed.
2) The conviction order passed by the trial court in convicting the accused u/sec. 138 of N.I. Act and ordered that he shall pay a fine of Rs.2,72,000/-, in default thereof he shall undergo simple imprisonment for six months is hereby confirmed.
3) No order is made as to costs.
Send back the LCR forthwith by keeping a copy of this judgment.
(Dictated to the Judgment writer on computer and after corrections, pronounced by me in the Open Court on this the 17th day of September 2018.) (H.G.Nagarathna) 55th Addl. City Civil & Sessions Judge, Bangalore.
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