Bangalore District Court
H.Shivanna vs Sri. M.Prasanna Kumar on 7 November, 2019
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-65) AT BENGALURU
Dated this the 7th day of November, 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.907/2017
BETWEEN:-
APPELLANT H.Shivanna,
S/o. Honnaiah,
(ACCUSED - IN
Aged about 56 years,
LOWER COURT) :
R/at.Tarana Palya,
Maniganahalli (post),
Magadi taluk,
Ramanagara District.
(By Sri. R.M.Prakash, Advocate)
V/s.
RESPONDENT/ Sri. M.Prasanna Kumar,
S/o.Muniyappa,
(COMPLAINANT - IN Aged about 61 years,,
LOWER COURT) : R/at.No.4, 6th A Cross,
Subedar Palya,
Yeshwanthpura,
Bengaluru-02.
(By Sri. Anand Raj, Advocate)
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JUDG MENT
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.3095/2014 dated 5.6.2017 on
the file of XII- Addl.Chief Metropolitan Magistrate,
Bengaluru (herein after referred as impugned judgment
and order).
2. Parties to this appeal shall be referred 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, trial court has not considered the defence
set up by the accused. Trial court has not considered
evidence adduced by the accused as Dw.1 and witness
on behalf of the accused as Dw.2. Further, trial court has
not considered the contents if exhibited documents on
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behalf of the defence side. Complainant not proved the
ingredients of Section 138 of N.I.Act. Complainant not
proved payment of hand loan to the accused as alleged in
the complaint. Complainant not produced income tax
documents to show lending loan to the accused.
Impugned judgment of conviction and order of sentence
passed by the trial court is highly erroneous, against to
the principle of natural justice. Statement of the accused
recorded U/s.313 of Cr.P.C. not taken into consideration.
Rebuttal evidence, circumstances which succeeded to
rebut the presumptions in favour of the complainant, not
taken into consideration. Admissions made by the
complainant in his cross-examination also not taken into
consideration. Impugned judgment of conviction and
order of sentence of the trial court is contrary of the law
and opposed to the evidence on record. Impugned
judgment of conviction and order of sentence is illegal,
liable to be set aside by interfering by this court in this
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appeal. For the aforesaid 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 impugned judgment and order
of conviction passed by the trial court.
5. Respondent appeared through counsel.
6. Heard arguments. Learned counsel for the
appellant filed written arguments. Perused the same.
7. L.C.R. were called for reference in this appeal.
8. Now, following are points arising for
determination:
1. Whether in the light of evidence
and material brought before the
court, trial court is justified in
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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?
9. It is answered for the aforesaid points as
under:-
Point No.1: In the Affirmative
Point No.2: In the Negative
Point No.3: As per final order below, for
the following:-
REASONS
10. POINTS NO.1 & 2:- These points are taken
together to avoid repeated discussions.
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11. Brief facts of the complaint is as follows;
Complainant and accused are close relatives.
Accused borrowed hand loan of Rs.500,000/- from the
complainant for purchase of site and agreed to repay
the same within four months. Accused did not repay
the loan amount as agreed. After repeated demands
and request made by the complainant, accused issued
cheque bearing No.130370 dated 8.5.2013 for a sum of
Rs.5,00,000/- in favour of complainant. Complainant
presented the said cheque, which was dishonoured by his
banker for the reason "Funds Insufficient". Despite
issuance of legal notice, accused not paid the bounced
cheque amount and given evasive reply to the legal
notice issued by the complainant. 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.
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12. 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 Pw.1
and Pw.2, ingredients of the exhibited documents Ex.P.1
to Ex.P.7, evidence of Dw.1 and Dw.2, ingredients of
exhibited documents Ex.D.1 to Ex.D.15. 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 get eligibility to
avail benefit of presumptions U/s.118 and 139 of N.I.Act.
13. 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/Bank Endorsement made it clear
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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 "Funds
Insufficient". Ex.P.3 to Ex.P6/copy of legal notice, postal
receipts, postal acknowledgment made it clear that, a
legal notice was issued by the complainant to the
accused demanding amount under the bounced cheque.
Ex.P.7 is the reply given by the accused to the legal notice
issued by the complainant. With the help of evidence of
Pw.1 and Pw.2 and contents of Ex.P.1 to Ex.P.7,
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.
14. Pw.2/Shivaprakash deposed in his evidence
that, he know the complainant and the accused. He
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deposed with respect to borrowing of Rs.5,00,000/- by the
accused from the complainant as hand loan and for
repayment, issuance of cheque by the accused which
came to be bounced. Pw.2 not cross-examined.
15. Accused appeared before the court and
enlarged on bail. However, to rebut the presumptions
available in favour of the complainant and to discharge
burden caste upon the accused through presumptions,
accused cross-examined Pw.1 and examined himself as
Dw.1 and examined one witness as Dw.2 and got
exhibited documents Ex.D.1 to Ex.D.15.
16. Before considering whether accused
succeeded to rebut the presumptions and succeeded to
establish his defence to the extent of probabilities, it is
just and necessary to accumulate undisputed facts and
admitted facts in this case. It is not in dispute that,
bounced cheque belongs to the bank account of the
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accused. Further it is not in dispute that, signature
appearing on the bounced cheque is his signature. It is
also not in dispute that, banker of the accused
dishonoured the cheque issued by the accused for the
reason ' funds insufficient'.
17. It is the contention of the accused that, he
kept bounced cheque in singed blank form in a safe place.
Complainant succeeded to commit theft of the same,
misused and filed this false complaint against the
accused. To assess whether accused succeeded to
establish the same, it is just and essential to consider the
admissions elicited in the cross-examination of Pw.1 and
evidence adduced by accused side along with documents
produced on his behalf.
18. In the cross-examination of Pw.1, no such
admissions elicited to show that, complainant not paid
any amount to the accused. No such admissions elicited
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in the cross-examination of Pw.1 to show that, accused
not handed over bounced cheque to the complainant. No
such admissions elicited in the cross-examination of Pw.1
to show that, allegations made in the complaint are all
false. No such admissions elicited in the cross-
examination of Pw.1 to show that, accused lodged
complaint against the complainant for offence of theft of
bounced cheque. No such admissions elicited in the cross-
examination of Pw.1 to show that accused is not liable to
make payment under the bounced cheque.
19. In the evidence of accused as Dw.1, he denied
issuance of cheque to the accused. Further, he denied
borrowing of departmental loan. Dw.1 further deposed
that in the year 2011, he kept 4 signed blank cheques in
the house of his sister Gangambika of Hospete village,
Magadi town. The said Gangambika borrowed loan from
the complainant in the year 2010. In the month of May
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2013 he got issued legal notice. It is the contention of the
accused that, Gangambika might have given said signed
blank cheque to the accused at the time of receiving
amount from the accused. He replied to the legal notice
issued by the complainant. There was no necessity to
him to borrow Rs.5,00,000/- from the complainant. His
annual gross salary is Rs.9,65,000/- and net salary is
Rs.3,13,000/- in the year 2013-14. In the cross-
examination accused admitted that, he is M.Sc. Graduate,
serving as a manager in the AIC of India Limited. Further,
accused admitted that in his reply to the legal notice, he
informed that, bounced cheque was kept in his native
place.
20. Dw.2/ Gangambika is the sister of the accused.
In her evidence, Dw.2 deposed that, she borrowed
Rs.10,000/- from the complainant. She issued cheque of
the accused to the complainant due to oversight.
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Complainant threatened her that, he is going to send her
to jail, if she appeared before the court to give evidence.
In the cross-examination she admitted that, at the time of
borrowing loan of Rs.10,000/- from the complainant, she
issued cheque belonging to bank account of her husband
as well as cheque of the accused.
21. It is admitted fact that, accused is educated
person, served as a Manager in the Public Limited. Judicial
notice can be taken that accused has got every
knowledge that to maintain negotiable instrument like
cheque.
22. It is pertinent to note that, accused not
produced any documents to show that, he lodged
complaint before the jurisdictional police against the
complainant for misusing his signed blank cheque and to
file false complaint against him. Accused not produced
any document to show that, he filed private complaint
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against the complainant before jurisdictional magistrate.
Accused not produced documents to show that, he
intimated his banker to stop payment, when his signed
blank cheque presented for realization. Produced
documents Ex.D.1 to Ex.D.14 are no way helpful to the
accused to establish his defence to the extent of
probabilities to show that, he is not liable to make
payment under the bounced cheque.
23. In view of the admitted facts and in the
absence of any documents to support the contention of
the accused by way of defence, it is difficult to hold that,
accused established his defence to the extent of
probabilities. Further accused failed to rebut the
presumptions available in favour of the complainant
U/s.118 and 139 of N.I.Act. Hence, accused is not eligible
to get 'benefit of doubt' as there is no 'reasonable doubt'
on the case of the complainant. On the other hand,
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complainant proved beyond 'reasonable doubt' that, the
accused committed an offence punishable U/s.138 of
N.I.Act.
24. 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.
25. So far as quantum of punishment is concerned,
Rs.6,00,000/- fine imposed for dishonour of cheque for
Rs.5,00,000/- in default, accused shall undergo S.I. for six
months. Sentence imposed 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.
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26. 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.
Consequently, impugned judgment of conviction and order of sentence dated 5.6.2017 passed in C.C.No.3095/2014 on the file of XII-
Addl.Chief Metropolitan Magistrate, Bengaluru is hereby confirmed.
17Crl.A.No.907/2017 Appellant/accused is hereby directed to appear before Trial Court to deposit the fine amount or to serve the sentence.
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 7th day of November, 2019.) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY. 18 Crl.A.No.907/2017 19 Crl.A.No.907/2017 20 Crl.A.No.907/2017 21 Crl.A.No.907/2017 22 Crl.A.No.907/2017 23 Crl.A.No.907/2017 7.11.2019 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 5.6.2017 passed in C.C.No.3095/2014 on the file of XII- 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.
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.
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