Bangalore District Court
K.C.Balaram vs Sri.J.R.Raju on 24 September, 2019
IN THE COURT OF THE LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU.
Dated this the 24th day of September, 2019
-: P R E S E N T :-
Sri. RAJESHWARA, B.A., L.L.M.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
CRIMINAL APPEAL No.945/2016
APPELLANT/ K.C.Balaram,
S/o.Chennavire Gowda,
(ACCUSED - IN Aged about 53 years,
LOWER COURT) : R/at. "Sri Devi Krupa",
Balaram Provision Stores,
BM Road Alur,
Hassan District.
(By Sri. N.P.Kallesh Gowda, Advocate)
V/s.
RESPONDENT/ Sri.J.R.Raju,
Major, S/o.Ramegowda,
(COMPLAINANT - IN R/at.No.90, 3rd Cross,
LOWER COURT) : 1st Main Road,
Mahalakshmipuram,
Bengaluru-86.
(By Sri.D.C.Jagadeesh,Advocate)
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Crl.A.No.945/2016
JUDGMENT
Appellant filed this appeal U/s.374(3) of Cr.P.C., being aggrieved by the judgment of conviction and order of sentence passed in C.C.No.23499/2009 dated 9.8.2016 on the file of XIX- Addl.Chief Metropolitan Magistrate, Bengaluru (herein after referred as impugned judgment and order).
2. Parties to this appeal shall be referred to as per their ranking before the trial court for the purpose of convenience and for better appreciation of their contentions.
3. In the memorandum of appeal, appellant submitted that, Impugned judgment of conviction and order of sentence passed by the Learned Magistrate is illegal, arbitrary, unjust, incorrect, and without ascertaining the true facts. Trial court wrongly came to the conclusion and mechanically passed the Impugned 3 Crl.A.No.945/2016 judgment of conviction and order of sentence. Impugned judgment of conviction and order of sentence is contrary to the facts, materials and evidence placed on record. Evidence adduced by the Pw.1 is totally unbelievable, unacceptable, throws great doubt upon his credibility and its reasonability. Learned Magistrate placed unreasonable reliance upon the evidence of Pw.1, which is contrary to the principle of appreciation of evidence. Complainant is not proved debt or liability. Respondent has stolen his cheque, when he was residing in his house at Hassan district. There is no legally recoverable debt under the bounced cheque. Signature on the Ex.P.1/ cheque was forged by the respondent/ complainant. Learned Magistrate committed grave error in not appreciating those facts. Learned Trial Judge failed to appreciate the evidence adduced by the accused as Dw.1 and contents of the exhibited Ex.D.1 to D.3 on his behalf. Report of the hand writing expert not believed by the 4 Crl.A.No.945/2016 Learned Magistrate which is opposed to principle of natural justice. For the said reasons, appellant prayed to interfere into the impugned judgment and order, and set aside the same.
4. Along with memorandum of appeal, appellant produced certified copy of entire order sheets, impugned judgment and order of conviction, deposition, copies of exhibited documents, complaint and F.S.L.Report.
5. Respondent appeared through his counsel.
6. Heard arguments. Learned counsel for the appellant filed written arguments and also citation of following judgments;
1. 2004 Crl.L.J.4107.
2. AIR 2006 SC 3366.
3. 2008 Air SCW 738.
4. 2009 Cri.L.J. 3777.
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5. 2012 SCC Online Kar 8861.
6. 2015(1) Sc 99.
7. AIR 2019 SC 1983.
Perused the same.
7. On the material placed before this court, following are the points arisen for consideration:
1. Whether in the light of evidence and material brought before the court, trial court is justified in convicting accused/appellant for the offence punishable U/s.138 of N.I.Act and sentencing him for the said offence?
2. Whether interference of this court is necessitated?
3. What Order?
8. It is answered on the aforesaid points are held as under:-
Point No.1: In the Affirmative Point No.2: In the Negative Point No.3: As per final order below, 6 Crl.A.No.945/2016 for the following:-
REASONS
9. POINTS NO.1 & 2:- These two points are taken together for common discussions.
10. Brief facts of the complaint is as follows; Complainant and accused are relatives. Accused borrowed loan of Rs.1,00,000/- from the complainant to meet his urgent need and fulfill his commitments and agreed to repay the same within three months and issued a cheque bearing No.0080794 dated 16.1.2009. Accused did not pay the loan amount as agreed. After repeated demands and requests made by the complainant, to discharge the said debt, accused advised the complainant to present the given cheque and encashed the loan amount. Complainant presented the said cheque, which was bounced by his banker for the reason "Account closed". After issuance of legal notice, in spite of paying 7 Crl.A.No.945/2016 bounced cheque amount, accused given untenable reply to the legal notice. Hence, complainant filed the complaint against the accused/appellant U/s.200 of Cr.P.C. for the offence punishable U/s.138 of N.I.Act.
11. Perused the entire order sheets, complaint filed U/s.200 of Cr.P.C., for the offence punishable U/s.138 of N.I.Act, sworn statement affidavit of the complainant, plea of accusation, examination-in-chief evidence of complainant by way of affidavit, ingredients of the exhibited documents Ex.P.1 to Ex.P.9, statement of accused U/s.313 of Cr.P.C. evidence of Dw.1 and ingredients of exhibited documents Ex.D.1 to Ex.D.3. There is no procedural defect of any nature while conducting trial relating to private complaint registered for the offence punishable U/s.138 of N.I.Act. Complainant successfully discharged initial burden of proof caste as per Section 138 of N.I.Act. Thereafter, complainant would 8 Crl.A.No.945/2016 get eligibility to avail benefit of presumptions U/s.118 and 139 of N.I.Act. At this stage, burden to disprove the presumptions shift on the accused in the form of reverse onus.
12. So far as appreciation of evidence is concerned, Pw.1 reiterated the ingredients of the complaint in his examination-in-chief affidavit. Contents of Ex.P.1/cheque, Ex.P.2/Credit Advice, Ex.P.3/Bank Endorsement made it clear that, cheque issued by the accused to the complainant came to be dishonoured by the banker of the accused when presented for realization for the reason "Account Closed". Ex.P.4/Legal notice, Ex.P.5/RPAD Receipt, Ex.P.6/UCP Receipt, Ex.P.7/RPAD Postal Acknowledgment due Card made it clear that, a legal notice was issued by the complainant to the accused demanding amount under the bounced cheque. Ex.P.8/Reply Notice made it clear that, legal notice was 9 Crl.A.No.945/2016 served to the accused and accused replied to the legal notice. Ex.P.9/Complaint made it clear that, complainant has filed complaint within time as per Section 138 of N.I.Act. With the help of evidence of Pw.1 and contents of Ex.P.1 to Ex.P.9, complainant successfully discharged his initial burden of proof caste upon him U/s.138 of N.I.Act. Thereafter, burden shifts on the accused as per presumptions coming into play U/s.118 and 139 of N.I.Act in the form of reverse onus on the accused to rebut the presumptions.
13. Accused appeared before the court and enlarged on bail. There is no specific plea of defence filed by the accused. To rebut the presumptions accused cross-examined Pw.1 and examined himself as Dw.1 and got marked 3 documents Ex.D.1 to Ex.D.3. 10
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14. Before deciding the point whether accused succeeded to rebut the presumptions and established his defence to the extent of probabilities, it is just and necessary to accumulate the undisputed facts of the case. It is not in dispute that, Ex.P.1/cheque belongs to the bank account of the accused.
15. Defence of the accused is that,Complainant committed theft of his cheque/Ex.P.1, filled the same, forged his signature submitted through banker, filed false complaint against him. To consider whether accused succeeded to establish his defence, we have to consider the admissions elicited in the cross-examination of Pw.1.
16. In the cross-examination of Pw.1, no such admissions elicited go show that, complaint filed by the complainant is false. No such admissions elicited in the cross-examination of Pw.1 to show that, a complaint lodged against him for committing theft of 11 Crl.A.No.945/2016 Ex.P.1/cheque, forged signature on Ex.P.1/ cheque, present the same for realization, filed false complaint for the offence punishable U/s.138 of N.I.Act. No such admissions elicited in the cross-examination of Pw.1 to show that, accused lodged complaint against the complainant before jurisdictional police for committing theft of Ex.P.1/Cheque and filed a false complaint against the accused. No such admissions elicited in the cross- examination of Pw.1 to show that, accused instructed his banker to 'stop payment' when his stolen cheque was presented by the complainant for realization, to show that, there is no legally enforceable debt.
17. Accused examined himself as Dw.1. In his evidence, Dw.1 deposed that, when he was residing the house of the complainant at Sakaleshpura, he lost his cheque book. In the year 1993, he closed his account of Vijayanaga Branch. Before institution of this complaint, 12 Crl.A.No.945/2016 complainant instituted one complaint against him and withdrawn the said complaint. He produced document- endorsement relating to closure of his Vijayanagara branch account at Ex.D.1, ledger at Ex.D.2 and complaint filed by the complainant in CC.No.182/1993 at Ex.D.3. He denied the sign, writings on Ex.P.1. He denied liability for payment under Ex.P.1. Dw.1 admitted that he has not given complaint about lost of his cheque book. He admitted that, in his reply, he had not stated about change of house by the complainant. He admitted that, he had not given complaint to the police about committed theft by the complainant.
18. Advocate for the appellant relied upon the citation of judgments reported in Air 2019 Sc 1983 relying upon the point that, Pw.1 unable to state the date of issuance of cheque in his examination-in-chief and in the cross-examination. Further, complainant failed to 13 Crl.A.No.945/2016 prove his financial capacity. Accused proved that, signature appearing on Ex.P.1 is not his signature. Hence, accused is entitled for acquittal.
19. Advocate for the appellant relied upon 6 citations of judgments mainly relying upon the presumptions available in favour of the complainant, under Negotiable Instruments Act.
20. Uncorroborated defence taken by the accused for commission of theft of cheque, forging the signature, misusing the cheque, create doubt on the genuineness of the defence set up by the accused. It is settled principle of law that, accused need not establish his defence beyound all reasonable doubt but to the extend of probabilities. However, defence set up by the accused has put in such a manner which prima facie looks like true and acceptable. In this case on hand, entire reading of the evidence made it clear that, to defeat the claim of the 14 Crl.A.No.945/2016 complainant accused intended to set up the plausible defence.
21. To substantiate his defence, accused neither filed any complaint before the jurisdictional police station nor lodged any complaint before the jurisdictional Magistrate against the complainant. Accused not even produced any documents to show that, he lodged any complaint against the complainant or for misuse of hiser cheque for filing false complaint against him. Accused not even produced any documents to show that, he instructed his banker to 'stop payment' when bounced cheques presented for realization to show that, there was no legally dischargeable debt under the bounced cheque. In the absence of any documentary proof, it is difficult to hold that, accused is not liable to make payment under the bounced cheque. Hence, accused is not eligible to get 'benefit of doubt' as there is no 'reasonable doubt' on 15 Crl.A.No.945/2016 the case of the complainant. On the other hand, complainant proved beyond 'reasonable doubt' that, the accused committed an offence punishable U/s.138 of N.I.Act. Perused the ratio laid down in the judgment relied upon by the counsel for the appellant. With due respect, ratio laid down in the judgment is not applicable to the facts and circumstances of the case on hand.
22. Compared the reasons assigned by the trial court with the allegations made in the memorandum of appeal. There are no acceptable grounds in the memorandum of appeal to interfere into the well reasoned, legally sustainable impugned judgment and order of conviction.
23. So far as quantum of punishment is concerned, Rs.1,75,000/- fine was imposed for dishonour of cheque 16 Crl.A.No.945/2016 for Rs.1,00,000/-. In default of payment of fine, accused shall undergo S.I.for six months. Order of sentence is reasonable. There is no merit in the appeal. Order under appeal is sustainable in law. Hence, interference of this court is not necessitated. Accordingly, point No.1 is answered in the affirmative and point No.2 in the Negative.
24. POINT NO.3 :- In view of findings on the above points No.1 and 2, this criminal appeal is devoid of merits and same is liable to be dismissed by confirming impugned judgment of conviction and order of sentence. Hence, following order is made:
ORDER Invoking provisions of Section 386 of Cr.P.C., this Criminal Appeal filed U/s. 374(3) is dismissed.17
Crl.A.No.945/2016 Consequently, impugned judgment of conviction and order of sentence dated 9.8.2016 passed in C.C.No.23499/2009 on the file of XIX- Addl.Chief Metropolitan Magistrate, Bengaluru is hereby confirmed.
Appellant/accused is hereby directed to appear before Trial Court to deposit the fine amount or to serve the sentence, forthwith.
Office is hereby directed to send back L.C.R. along with certified copy of Judgment, forthwith.
(Dictated to the Judgment Writer, script typed by her and corrected, signed and then pronounced by me in the open court on this the 24th day of September, 2019.) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY. 18 Crl.A.No.945/2016 19 Crl.A.No.945/2016 20 Crl.A.No.945/2016 21 Crl.A.No.945/2016 22 Crl.A.No.945/2016 24.9.2019 Judgment pronounced in the open court Vide separate judgment ORDER Invoking provisions of Section 386 of Cr.P.C., this Criminal Appeal filed U/s. 374(3) is dismissed.
Consequently, impugned judgment of conviction and order of sentence dated 9.8.2016 passed in C.C.No.23499/2009 on the file of XIX- Addl.Chief Metropolitan Magistrate, Bengaluru is hereby confirmed.
Appellant/accused is hereby directed to appear before Trial Court to deposit the fine amount or to serve the sentence, forthwith. 23
Crl.A.No.945/2016 Office is hereby directed to send back L.C.R. along with certified copy of Judgment, forthwith.
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
24 Crl.A.No.945/2016