Bangalore District Court
Giridhar Srinivas vs P.V.Seshadrinathan on 4 January, 2016
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY.
(CCH-67)
DATED THIS THE 4th DAY OF January 2016.
PRESENT
SRI.VIJAYAN.A., B.A.(LAW), LL.M.
LXVI Addl.City Civil & Sessions Judge
Crl.A.No.438/2015
APPELLANT Giridhar Srinivas,
s/o Late.Srinivas,
Aged about 56 years,
No.50, Church Street,
Bangalore.560 001.
(Rept. By Sri.S.N.Ramprasad, Adv.)
VS.
RESPONDENT P.V.Seshadrinathan,
S/o P.V.Vydyanath,
Aged about 66 years,
R/at A-1201, 'Amoda Valmark'
Doddakammanahalli (PO),
Gottigere, Bangalore.83.
(Rept. By Sri.S.N.Ramprasad Adv.)
2 Crl.A.No.438/2015
JUDGMENT
Appellant has preferred this appeal under Sec.374 of Cr.P.C. being aggrieved by order of conviction passed in CC.No.24452/2012 dated 26.2.2015 by the learned XXII ACMM, Bengaluru.
2. Brief facts of the appellant's case are that:-
The complainant being known person through some broker to appellant he being developer. It is the case of respondent that he borrowed the amount for temple view project for which the accused has received amount but there is no documents produced before the trial court, but the cheque in question given by the accused to the respondent had issued a cheque bearing No:170916 dt: 16.8.2012 drawn on Ing Vysys Bank.ltd., M.G.Road for a sum of Rs.1,50,000/-. On presentation the said cheque came to be dishonored for 3 Crl.A.No.438/2015 the reason account closed. Inspite of issuance of notice accused failed to pay the same. Hence, the complaint.
3. The learned magistrate was pleased to take cognizance and sworn statement of complainant was recorded and issued summons to the accused. Thereafter, the complainant has examined himself as P.W.1 and got marked Ex.P.1 to P.21 and closed his side of evidence. The statement of accused under Sec. 313 of Cr.P.C. was recorded and accused examined himself as DW1 and no documents are marked. The trial court after hearing the arguments on both sides passed the impugned judgment dated 26.2.2015 convicting the accused/appellant for the offence punishable under Sec.138 of N.I. Act and sentenced her to pay a fine of Rs.1,55,000/- and in default he shall undergo S.I. for a period of two years.
4 Crl.A.No.438/2015
4. Aggrieved by order of conviction the appellant herein has approached this court for the following among other grounds:-
a) The judgment is erroneous in law.
b) There is no legally recoverable debt between the complainant and the accused and there are no monetary transactions between the complainant.
c) The learned CMM has not appreciated evidence of defense and after not considering the rival contentions the amount has been paid to the appellant the way back in the year 2007 and earlier to that the complainant was in Dubai but there is income tax returns nor bank balance as on the date of the lending of the amount he has not produced any documents before the trial court, but trial court has not considered the cross examination made by accused/appellant properly and not been looking the facts and circumstances and passed the judgment on 26.2.2015 convicting the accused/appellant on the ground that complainant respondent has proved his case and that 5 Crl.A.No.438/2015 there was legally enforceable debt without considering income tax returns proof and other documents, the court below has convicted the appellant/accused.
d) Though the appellant accused has come out with a defense that the cheque in question have taken by the complainant/respondent in the year of 2007 the same is barred by limitation the court below has naot looked in to this aspect. Non consideration of this aspect has resulted in great prejudice to the appellant.
e) The court below having discussed the evidence of the complainant in paras 10, 11 and 12 of the judgment and came to the conclusion that solely on the ground that there was a transaction on in the year 2007 between the monetary contracts were held between the complainant and the accused. The legal notice was issued before presented the said cheque in question was not looked in to the court below. The judgment is erroneous in as much as the accused/appellant as specifically stated in the evidence that the cheque was not issued by the appellant/accused on 16.8.2012 to established the as mentioned in the complaint.6 Crl.A.No.438/2015
f) The court below erred in not raising a presumption as contemplated under Sec.139 of NI Act in favour of the holder and as such has given an erroneous conclusion. There is no interest to be imposed in the form of Criminal Procedure code but the court below has seriously erred passing the judgment in favour of the complaint.
g) The court below erred in not appreciating the cross examination by the accused in court below in as much as an unequivocal terms not admitted the fact that he had not given the cheque in question to the respondent. The court below failed to notice the Ex.P1 except the signature all the columns are different that he admits in his cross examination.
Hence, learned advocate for appellant prayed this court to set aside the judgment of conviction and sentence passed and acquit the appellant in the interest of justice and equity.
5. Heard.
7 Crl.A.No.438/2015
6. On the basis of case made out, following points arise for my determination:
1) Whether the impugned order is illegal arbitrary and requires interference by this Court ?
2) What Order?
7. My findings to the above points are:
1) In the Negative
2) As per final Order, for the following:
REASONS
8. POINT No.1: The complainant has filed this case against the accused for the offence punishable under Sec.138 of NI Act. In the trial court during the course of trial complainant himself examined as PW1 and got marked documents Ex.P1 to P21. On the other hand accused himself examined as DW1. Trial court after appreciating both oral and documentary evidence 8 Crl.A.No.438/2015 adduced and produced by both the parties convicted the accused for the offence punishable under Sec.138 of NI Act and sentenced him accordingly. Being aggrieved by judgment of conviction and sentence passed by trial judge appellant preferred this appeal on the ground that The judgment is erroneous in law. There is no legally recoverable debt between the complainant and the accused and there are no monetary transactions between the complainant. The learned CMM has not appreciated evidence of defense and after not considering the rival contentions the amount has been paid to the appellant the way back in the year 2007 and earlier to that the complainant was in Dubai but there is income tax returns nor bank balance as on the date of the lending of the amount he has not produced any documents before the trial court, but trial court has not considered the cross examination 9 Crl.A.No.438/2015 made by accused/appellant properly and not been looking the facts and circumstances and passed the judgment on 26.2.2015 convicting the accused/appellant on the ground that complainant respondent has proved his case and that there was legally enforceable debt without considering income tax returns proof and other documents, the court below has convicted the appellant/accused. Though the appellant accused has come out with a defense that the cheque in question have taken by the complainant/respondent in the year of 2007 the same is barred by limitation the court below has not looked in to this aspect. Non consideration of this aspect has resulted in great prejudice to the appellant. The court below having discussed the evidence of the complainant in paras 10, 11 and 12 of the judgment and came to the conclusion that solely on the ground 10 Crl.A.No.438/2015 that there was a transaction on in the year 2007 between the monetary contracts were held between the complainant and the accused. The legal notice was issued before presented the said cheque in question was not looked in to the court below. The judgment is erroneous in as much as the accused/appellant as specifically stated in the evidence that the cheque was not issued by the appellant/accused on 16.8.2012 to established the as mentioned in the complaint. The court below erred in not raising a presumption as contemplated under Sec.139 of NI Act in favour of the holder and as such has given an erroneous conclusion. There is no interest to be imposed in the form of Criminal Procedure code but the court below has seriously erred passing the judgment in favour of the complaint. The court below erred in not appreciating the cross examination by the accused in court below in 11 Crl.A.No.438/2015 as much as an unequivocal terms not admitted the fact that he had not given the cheque in question to the respondent. The court below failed to notice the Ex.P1 except the signature all the columns are different that he admits in his cross examination.
9. PW1 complainant P.V.Sheshadrinathan filed affidavit in lieu of examination in chief and examined himself as PW1. In support of his case he produced and got marked documents Ex.P1 to P.21. In his cross examination he deposed that in Ex.P7 and P8 though there is no confirmation of bank statement but there is seal, he also denied that at the time of transaction he had no capacity to pay loan to accused, from the year 2007 he went on paying loan to accused totally about 35 lakhs. He did not visit temple view project which was undertaken by accused. But he came to know that the place of site is Sonnenahalli, Tavarekere. He did 12 Crl.A.No.438/2015 not took any receipt from accused for payment of loan, but he has filed bank statement to show his payment of loan to accused. He denied that he has produced fabricated documents for his unlawful claim in this case and denied lengthy suggestions put by learned counsel for the accused.
10. On the other hand accused himself examined as DW1. In his examination in chief he deposed that at about 4 to 5 years back one broker Damodar introduced complainant , there was no transaction between himself and complainant. He was not having any project as alleged in the complaint. But he is having different project and he denied his signature in Ex.P1 and P1(a). He did not execute any document in favour of complainant. In his cross examination he deposed that he is doing real estate business. Complainant is known to him for the past 5 years. As 13 Crl.A.No.438/2015 per Ex.P7 Bank statement he did not borrow rupees 5 lakhs on 22.5.2007 from complaint. As per Ex.P8 he did not borrow rupees 2 lakh by way of cheque on 5.4.2007 and not borrowed any amount from complainant by way of cash. Further he clearly admitted that signature found in Ex.P1(a) and vakalath belongs to him. Since he has closed his account he did not give that cheque. He did not file any complaint against the complainant for misappropriation of cheque. He replied the notice and he cannot remember what ever replied in the notice. That fact is known to his advocate. As per Ex.P21 he had been convicted for cheque bouncing. He denied that he had borrowed loan of Rs.30 lakhs from complainant. Thereafter both of them settled for Rs.10 lakhs. He denied several suggestions put by learned counsel for the complainant.
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11. On analyzing entire case of both complainant and accused it is clear that complainant has filed this case for offence punishable under Sec.138 of NI Act against the accused. This court while reappreciating the evidence on record find that accused is approbating and reprobating his defense in both examination in chief as well as his cross examination. In his examination in chief he denied his signature and issuance of cheque in Ex.P1. But in his cross examination he admitted his signature in Ex.P.1 and P.1(a). Further accused though he replied notice of complainant failed to depose anything with regard to reply notice and evasively deposed that the facts of reply notice known to his advocate. Accused also admitted that he has not filed any case against the complainant for misappropriation of his cheque. All these circumstances, shows that accused merely denied 15 Crl.A.No.438/2015 case of complainant. It is well settled principle of law that mere denial of suggestions have no evidentiary value under law. Under these circumstances this court also relied on case law reported in 2013(2) Kar.L.J. 569 High Court of Karnataka, Circuit Bench at Gulbarga in Smt.Peeranbi V/s Hajimalang wherein it is held that:
" NEGOTIABLE INSTURMENTS ACT, 1881, Sections 138 and 139 - Most dangerous provision - Double edged provision - Traders and citizens to be very careful - In dealing with cheque - Trial Court committed error by comparing signature of accused - with that of signature on vakalath - Trial Court acquitted accused - These proceedings were not in nature of a suit for recovery of money - Limited scope -
Whether there was dishonor of cheque - Held, the aspect of dishonor of cheque established 16 Crl.A.No.438/2015 thus the accused is sentenced to pay a fine of Rs.3,50,000/- only thus appeal is allowed."
And a decision reported in 2013(3) Kar.L.J. 347 High Court of Karnataka at Bangalore in M.D.Ramakrishnaiah V/s V.Javaregowda wherein it is held:
" NEGOTIABLE INSTRUMENTS ACT, 1881 , Section 138 - Giving blank signed cheque - To any third person - Is very dangerous - You may be behind the bars - Filling the blanks by other person is no defence - Trial Court rejected the application - Held, if signature is admitted on the cheque there is no need to get opinion of expert in respect other contents of cheque."
12. Hence, in view of above said facts and circumstances of the case and case laws it is clear that the trial court rightly convicted the accused for the alleged offences , this court find no reasonable grounds 17 Crl.A.No.438/2015 to interfere in to the orders of conviction and sentence passed by trial court. Accordingly, this court hold Point No.1 in the Negative.
13. POINT No:2 In view of my finding to the point No.1 and for reasons discussed above, I proceed to pass following ORDER The Criminal Appeal filed by the appellant under Sec.374 Cr.P.C. is hereby dismissed.
Order of conviction and sentence passed by XXII Addl.CMM, Bengaluru in CC.No:24452/2012 dated:
26.2.2015 is hereby confirmed.
Send LCR along with the copy of this order forthwith to the trial court.
(Dictated to the Judgment writer on Computer, corrected by me and pronounced by me in the open court on this 4th day of January 2016) (A.VIJAYAN), LXVI Addl.CC & SJ, Bangalore.