Bangalore District Court
Sri D.B. Hanumanthaiah S/O. Bommegowda vs Age: 55 Years on 27 September, 2018
IN THE COURT OF 55TH ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE (CCH-56)
:Present :
Smt. H.G. Nagarathna, B.A., LL.B.,
LV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
: Crl. Appeal No. 1182/2014:
Dated: this the 27th day of September 2018.
APPELLANT/ Sri D.B. Hanumanthaiah s/o. Bommegowda,
ACCUSED : Age: 55 years, r/at Kaverinagar,
Behind Microwave Station, Karaswadi Road,
Mandya-571401.
(By: Sri Mohan S., Adv.)
- V/s -
RESPONDENT/ Sri K.P.Anand s/o. K. Papegowda,
COMPLAINANT : Age: 50 years, r/at No.1319/18,
'A' Block, 8th Main, 2nd Stage,
Rajajinagara, Bangalore-560 010.
(By: Sri. R. Byre Gowda, Adv.)
JUDGMENT
This is a Criminal Appeal filed u/sec 374 of the Cr.P.C by Appellant/accused against Respondent/complainant challenging the Judgment and order dated 23-9-2014 passed by the learned 13th ACMM, Bangalore in C.C No.129/2011 convicting the Appellant/accused.
2. For the sake of convenience the "Appellant/accused"
and "Respondent/complainant" are hereinafter referred to as "accused" and "complainant" respectively.
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3. The facts leading to this Crl. Appeal, in brief, are as under:-
3(a) Accused and complainant are the friends, the accused approached the complainant. During the 2nd week of May 2009, the accused requested the complainant to advance loan of Rs.3,00,000/- for the repair of his house. The accused promised to repay the said amount within one year. Accordingly, complainant advanced the same. After the lapse of one year, when the complainant demanded to repay the said amount, then the accused has issued a cheque bearing No.088457 dt.18-6- 2010 for Rs.3,00,000/- drawn on Vijaya Bank, Gejjalagere branch, Maddur taluk, Mandya district. When the complainant presented the said cheque in Janatha Co-operative Bank Limited, Malleshwaram branch, Bangalore, for encashment, the said cheque was dishonoured with an endorsement as "Funds Insufficient" on 26-6-2010. Consequently, the complainant got issued legal notice to the accused on 5-8-2010, through RPAD and UCP. Inspite of service of legal notice, the accused neither replied nor repaid the cheque amount within stipulated time. Hence alleged that the accused has committed the offence u/sec. 138 of N.I. Act.
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He pleaded not guilty and claimed to be tried. Accordingly the trial court tried the case.
3(c) The complainant, in order to prove his case, got himself examined as PW1 and produced 11 documents such as cheque, bank endorsements, Bank memo, copy of Legal Notice, RPAD postal acknowledgment, complaint, complaint in C.C.No.442/07, Cc of the order sheet, Cc of cheque, Cc of the Bank endorsement and Cc of the compromise petition and got them marked as Exs.P. 1 to 10. The statement of accused u/sec. 313 of Cr.P.C was recorded. Then the accused has adduced the oral evidence of accused as DW1 and has not produced any documents on his behalf.
3(d) The learned trial judge heard both side arguments and raised the following points for consideration:
1) Whether the complainant proves that the accused had issued a cheque bg. No.088457 dt.18-6-2010 for Rs.3,00,000/- towards the discharge of legally enforceable debt due to him and when the cheque was presented for encashment, it came to be returned as
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2) To what order?
3(f) The trial judge answered the point No.1 in the affirmative and convicted the appellant/accused for the offence punishable u/sec. 138 of N.I Act by the impugned Judgment and order dated. 23-9-2014. The trial judge has ordered that the accused shall pay the fine of Rs.3,05,000/-, that in default of payment of said fine amount the accused shall undergo simple imprisonment for a period of 6 months, that out of the said amount Rs.3,00,000/- shall be paid to the complainant as compensation, as 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. 23-9-2024, 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) The learned trial judge failed appreciate the records properly and rendered judgment erroneously, the same oppose to law facts and circumstances of the case.
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3) 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.
4) 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.
5) The impugned order is oppose to law facts and circumstances of the case. The interference at the hands of this Court is required by appreciate the evidence properly.
6) The trial court does not consider the evidence that on the basis of the invalid cheque, the respondent filed a case, without looking into the same the trial judge erroneously convicted the appellant.
7) The impugned Judgment is devoid of merits and has resulted in miscarriage of justice.
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.
7. Heard by both, perused the same.
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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 and 2 :-
10. This is an appeal filed by the appellant question the orders of the trial court in convicting the accused for the offence u/sec.138 of N.I. Act and sentence him to pay fine of Rs.3,05,000/- and in default of the fine amount he shall undergo S.I. for a period
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11. This appeal has been filed by the appellant on several grounds that the trial court has ignored the pleadings of the parties and the complainant has not produced any document that he is having a financial transaction with the appellant. There is no legally enforceable debt. The cheque is invalid and the order is opposed to the law. PW1 in his evidence has stated that he know the appellant and they were good friends and the appellant requested for financial help of Rs.3,00,000/- for his family needs and to perform his sister daughter marriage and accordingly the respondent paid Rs.3,00,000/- in the month of March 2009 and April 2009 after borrowing said loan the appellant executed on demand promissory note and consideration receipt and assured that he will return within one year with formal interest. Thereafter the accused did not pay the said amount, but he had issued a cheque of Rs.3,00,000/- to the respondent which was placed before the Bank and returned with bank memo funds insufficient, legal notice caused, no reply. Hence the above said case against the accused. The documents Ex.P.1 to Ex.P.13 marked. Ex.P.1 is
-8- Crl.Appl. No.1182/2014 the cheque in question, signature of the respondent is Ex.P.1(a) and in the cross-examination the appellant took a contention that there was a financial transaction in between the appellant and one Mr.Ramesh, but no financial transaction with the respondent and no cheque was given in the hands of accused towards to loan amount. The defendant not examined to rebut the presumption arises u/sec.139 of the N.I. Act to say that there was no transaction in between the parties and cheque in question was not issued for legally recoverable debt. The documents Ex.P.1 to Ex.P.12 remains unrebutted, unchallenged by the appellant through his defence evidence or rebuttal documents and further the appellant did not stepped into the witness box to say that cheque in question Ex.P.1 was not issued for legally recoverable debt and also it is not of his case that no cheque was issued in favour of respondent. The Ex.P.1 the cheque in question is remained uncontraverted. Therefore, it can be held that the cheque in question was issued for legally recoverable debt. The respondent has proved all the ingredients of section 138 of N.I. Act. Therefore, the order passed by the trial is based upon sound principles of law and fact. Hence I answer point No.1 in the affirmative and point No.2 is answered in the Negative.
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12. Keeping in view the finding already given on point Nos.1 and 2 above, I proceed to pass the following:
ORDER This Crl.Appeal No.1182/2014 filed by appellant/accused u/sec. 374(3) of Cr.P.C is hereby dismissed.
The Judgment and order dated 23-9-2014 passed by the learned 13th Addl. Chief Metropolitan Magistrate, Bangalore City, in C.C No.129/2011 in convicting the u/sec. 138 of N.I. Act & sentence him to pay fine of Rs.3,05,000/- in default of payment he shall undergo SI for a period of six months, out of the said fine amount Rs.3,00,000/- shall be paid to the complainant as compensation and Rs.5,000/- shall be remitted to sate, is hereby confirmed.
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 27th day of September 2018.) (H.G. Nagarathna) LV Addl. City Civil & Sessions Judge, Bangalore.
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