Bangalore District Court
Sri.Gajendra Singh.S.M vs M/S. Sri.Gokulam Chits & on 17 March, 2021
IN THE COURT OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU
(CCH.20)
:Present:
Sri.D.S.VIJAYA KUMAR, B.Sc., LL.B.,
XXVI Addl. City Civil & Sessions Judge, Bengaluru
th
Dated this the 17 day of March, 2021
Crl.Appeal No.25024/2018
Appellant:- Sri.Gajendra Singh.S.M.,
Proprietor,
M/s.Trinity Enclosures
No.10, 5th Main,
Garudacharapalya,
Bengaluru - 560 048
[By Sri.K.U.R-Adv.]
Vs.
Respondent:- M/s. Sri.Gokulam Chits &
Finance Co.(P) Ltd.,
Having its Regd. Corporate
office at "Sree Gokulam
Towers", No.66, Arcot Road,
Kodambakkam, Chennai-24,
and having Branch Office at
Bldg. No.273, Main Road,
Whitefield, Bengaluru -66.
[By Sri.H.K.S-Advocate]
JUDGMENT
The Appellant/Accused has filed this Criminal Appeal under Section-374(3) of the Cr.P.C., questioning the Judgment and Order of Conviction and sentence dtd.23.01.2018 passed in C.C.No. 53965/2015 by the LVIII Additional Chief Metropolitan Magistrate, Mayo Hall, Bengaluru, whereby the Appellant/Accused has been convicted for the offence under section 138 of Negotiable Instruments Act,1881 and sentenced to pay a fine of Rs.3,72,021/-, with default sentence of simple imprisonment for three months and ordered to pay Rs.3,62,021/- to the complainant out of the fine amount towards compensation and a sum of Rs.10,000/- to the State-exchequer.
2. Brief facts of the Appeal Memo of the Appellant, are as below:-
3
Crl.A.No.25024/2018 That, the Complainant/respondent is a Company running Chit business, and Accused/ Appellant was a subscriber in the Chit Group No.G2H 1113 with Ticket No.08 of the Sala Value of Rs.5,00,000/-. Appellant/Accused participated in the auction and became a successful bidder for a prized chit amount of Rs.3,73,146/- on 29.07.2008, and Complainant/respondent paid the prized amount to the Appellant/Accused by way of cheque. After some time of receiving the prized amount of the Chit, Appellant/Accused failed to remit the future chit installments to the Complainant/respondent and became chronic defaulter. After regular follow up and visits on a number of times, Appellant/Accused accepted that a sum of Rs.3,22,021/- was outstanding on his part and issued a cheque for the said amount in favour of Complainant/respondent bearing No. 185394 dtd.20.12.2012 drawn on 4 Crl.A.No.25024/2018 Syndicate Bank, Whitefield SSI Branch, Bengaluru. Appellant/Accused had assured that he would maintain sufficient fund in his Account to honour the cheque, but to the dismay of the complainant, when cheque was was presented on 22.12.2012 for collection through the complainant's banker-Federal Bank Ltd., Marathahalli, Bengaluru, it came to be returned with a bank endorsement dtd. 22.12.2012 'Refer to Drawer'. As a consequence, Complainant/ respondent got issued a legal notice to the Appellant/Accused on 21.01.2013 under section 138 of Negotiable Instruments Act,1881 calling upon the Appellant/Accused to make payment of the amount of the dishonoured cheque i.e., Rs.3,22,021/- within fifteen days of receipt of the notice. Notice was sent through RPAD as well as Speed Post. Notice was sent to the correct and last known address of the Appellant/Accused. But, the notice under RPAD was 5 Crl.A.No.25024/2018 returned unserved on 23.01.2013. But, Speed post notice was served on the Appellant/Accused. The Appellant/Accused failed to make payment of the cheque amount inspite of service of notice and thereby became liable for the offence offence punishable under section 138 of Negotiable Instruments Act,1881.
3. Compliant was filed before the Trial court on 01.03.2013; and after taking cognizance and recording sworn statement of the complainant, Appellant/Accused was summoned. As the Appellant/Accused claimed trial, on behalf of the Complainant/respondent, its Power of Attorney Holder was examined as PW.1 and Ex.P.1 to 8 documents were marked on behalf of the complainant. After Appellant/Accused was examined under section 313 of Cr.P.C., Appellant/Accused has 6 Crl.A.No.25024/2018 not chosen to adduce defence evidence. Thereafter, Learned Trial Judge has heard arguments and passed impugned judgment of conviction and order of sentence.
4. Being aggrieved by the impugned judgment of conviction and order of sentence, this appeal is preferred on the following grounds:-
Conviction and sentence passed by the Court below are against law, facts and probabilities of the case and not sustainable in the eye of law. Trial court has erred in considering only evidence of the Complainant/respondent. Evidence of the Appellant/Accused was ignored while passing the impugned judgment. Trial court ought to have considered the evidence produced by the Appellant/Accused and presumptions which was 7 Crl.A.No.25024/2018 favourable to the Appellant/Accused; but without considering the evidence and presumption which is favouable to the Appellant/Accused, judgment has been passed. Appellant/Accused belongs to minority and Economically weaker section and hence some special consideration and leniency in passing the impugned judgment was required. Impugned judgment suffers from various infirmities and hence it is liable to be set aside.
5. L.C.R. has been secured.
6. No arguments have been addressed on both sides. Even though liberty was reserved to file written arguments, both sides have not even filed written arguments. Hence, the court has proceeded to pass judgment on the materials available on record.
8
Crl.A.No.25024/2018
7. Now the points that arise for my consideration are:-
1. Whether the complainant/ respondent has complied with Sec.138(a) to (c) of Negotiable Instruments Act, 1881?
2. Whether Complainant/Respondent has proved that Accused/ Appellant had issued Ex.P.1 cheque for Rs.3,22,021/- to discharge legally enforceable debt or liability?
3. Whether Complainant/respondent has proved the offence U/S. 138 Negotiable Instruments Act, 1881 against Accused/Appellant beyond reasonable doubt?
4. Whether the Judgment and sentence in C.C.No.53965/2015 9 Crl.A.No.25024/2018 dtd.23.01.2018 is illegal and calls for interference?
5. What order?
8. My answer to the above points are as follows:-
POINT No.1 :- In the affirmative
POINT No.2 :- In the affirmative
POINT No.3 :- In the affirmative
POINT No.4 :- In the negative
POINT No.5 :- As per final order
for the following
REASONS
9. POINT No.1:- Sum of the details of the cheque marked at Ex.P.1, its presentation date, date of issuance of notice, date of presenting the cheque 10 Crl.A.No.25024/2018 is tabulated for the sake of convenient understanding as below:-
Date of Cheque Date of Date of Date of Date of Cheque- Amount presentatio return of Legal presentation of Exhibit (Rs.) n of Cheque cheque and notice and complaint.
and Exhibit Exhibit Exhibit 20.12. 3,22,021/- 22.12.2012 22.12.2012 21.01.2013 01.03.2013 2012 Ex.P. 2 Ex.P.3 Ex.P. 1
10. Ex.P.1 cheque is dated 20.12.2012. Ex.P. 2 is return memo issued by Accused's banker on 22.12.2012 with endorsement 'Refer to Drawer'.
Thus, Ex.P.2 shows that the cheque dtd. 20.12.2012 was presented for encashment within its validity period. Complainant has caused legal notice as per Ex.P.3 on 21.12.2013 which is within thirty days from the date of intimation of dishonour of the cheque. Ex.P.4 and 5 postal receipts show that indeed legal notice was sent on 21.1.2013. Therefore, legal notice has been issued as per the requirement of the 11 Crl.A.No.25024/2018 provision of Sec. 138 of Negotiable Instruments Act,1881 within 30 days from the date of receiving the intimation about the dishonour of the cheque issued by the Appellant/Accused. Ex.P.6 is the unserved RPAD envelope containing the legal notice sent by the Complainant to Accused. It bears postal shara that intimation of the said postal article was delivered to the addressee on 23.01.2013 and it was not claimed. Thus, Ex.P.6 notice sent under RPAD has been returned unserved with an endorsement by the Postal authority as 'not claimed'. Hence, service of legal notice on the Appellant/Accused can be inferred as on 23.12.2013. In the cross examination of PW.1 service of legal notice on the Appellant/ Accused has not been challenged. It has not been controverted that notice sent under Speed Post was served on the Appellant/Accused and also it is not controverted that notice was sent to the 12 Crl.A.No.25024/2018 Appellant/Accused to his last known correct address. Therefore, legal notice must be deemed to have been served on Accused on 23.01.2013. On 1.3.2013 complainant has filed private complaint before the Learned 14th Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru which is within the period of limitation. Therefore, there is compliance of Sec. 138 (a) to (c) of the Negotiable Instruments Act,1881. Consequently, Point No.1 is answered in the affirmative.
11. Point Nos.2 to 4:- PW.1 has produced Certified copy of the General Power of Attorney issued in his favour by the Complainant company to represent the Company and prosecute the case, as per Ex.P.7. In the cross examination of PW.1, his authority to represent the complainant company and give evidence on its behalf has not been questioned. 13
Crl.A.No.25024/2018 When so, Ex.P.7- Certified copy of the General Power of Attorney shows that PW.1 had valid authorization from the Complainant company to represent it to prosecute the complaint against the Appellant/Accused.
12. In the affidavit filed for examination in chief, PW.1 reiterates that Accused was a subscriber in the Chit group No.G2H1113 with Ticket No.08 of Sala/Chit value of Rs.5.00 lakhs that was being conducted by the Complainant company. He reiterated that Accused successfully bid in the Chit auction and received prized chit amount of Rs.3,73,146/- on 29.07.2008 by way of cheque. He further reiterates that Appellant/Accused became a defaulter in repayment and after regular follow ups Appellant/Accused accepted that he was having outstanding liability in a sum of Rs.3,22,021/- 14
Crl.A.No.25024/2018 including principal and interest and issued Ex.P.1 cheque dtd. 20.12.2012, for repayment of the said amount.
13. In the cross examination of PW.1 he states that he does not remember the cheque number under which the prized chit amount was paid to the Accused. But, he has stated that in the month of July 2008 Accused received the amount. Denial has been made that amount was not paid to the Accused by way of cheque. But for positing that, the amount was not paid to the Accused through the cheque, there is no suggestion that the prized chit amount was not paid to the Accused at all. Further, suggestion made in the cross examination of PW.1 rather show that Appellant/Accused admits that he had bid in the chit auction and received the prized chit amount. Only suggestion has been made that 15 Crl.A.No.25024/2018 the amount received by the Appellant/Accused is not tallying with the amount mentioned in the ledger statement produced by the complainant as per Ex.P.8. PW.1 has repudiated the said contention put-forth by way of suggestion made. PW.1 has admitted that the prized amount was paid to the Accused and by way of security, property documents of Accused had been obtained. In fact, a specific suggestion has been made on behalf of Appellant/Accused that on 29.07.2008, complainant company had taken property documents of the Appellant/Accused from the Appellant/Accused towards the security. Apart from the same, it is further put-forth to PW.1 that Appellant/Accused did not issue the cheque to the complainant in the first instance of the default committed by him in repayment of the installment. PW.1 has admitted the said suggestion by further stating that the 16 Crl.A.No.25024/2018 Appellant/Accused issued cheque in the month of December. In fact, said suggestions put-forth in the cross examination of PW.1 are corroborating the complaint version. Relevant statement of PW.1 and suggestion put-forth to him in the cross examination are at para-2 pages-2, which is as below:-
"2. 2008 ರ ಜಜಲಲಲಯಯದ ಆಪಪಧತರಜ ಹಣ ತಲಗಲದಜಕಲಕಯಡ ನಯತರ ಹಣ ಪಪವತ ಮಪಡರಜವವದಲಲ.
ನನನ ಪಪಕಪರ ಆಪಪಧತರಜ ಆಗಸಸಸಯದ ಹಣ ಪಪವತ
ಮಪಡರಜವವದಲಲ. ಆಪಪಧತರಯದ ಭದಪತಲಗಪಗ ಆಸಸಗಲ
ಸಯಬಯಧಪಟಸ ದಪಖಲಲಗಳನಜನ ಪಡಲದಜಕಲಕಯಡರಜತಲಸತವಲ.
ಆಸಸಗಳಜ ಬಲಯಗಳಕರನ ಕಪಡಜಗಲಕತಡ ನವಲತಶನಕಲಕ
ಸಯಬಯಧಪಟಸದ ದಪಖಲಲಯಪಗರಜತಸದಲ. ದದ
29.07.2008 ರಯದಜ ಆಸಸ ದಪಖಲಲಯನಜನ ಭದಪತಲಗಪಗ ಪಡಲದಜಕಲಕಯಡರಜತಲಸತನಲಯದರಲ ಸರ. ಆಪಪಧತರಜ ಮದಲ ಬಪರಗಲ ಹಣವನಜನ ವಪಪಸಜಸ ಮಪಡಲಜ ವಫಲರಪದ ಸಮಯದಲಲ ಚಲಕಕ ಕಲಕಟಸರಜವವದಲಲ ಎಯದರಲ ಸರ. 2012 ಡಸಲಯಬರನಲಲರ ಆಪಪಧತರಜ ಚಲಕಜನಸ ಕಲಕಟಸರಜತಪಸರಲ".
P.W.1's affidavit evidence by way of affidavit for examination in chief and his statement during the cross examination as well as the question put-forth 17 Crl.A.No.25024/2018 to him in the cross examination clearly show that Accused was a subscriber in the chit that was being run by the complainant company and Accused had bid the chit and received the prized chit amount and at the time of receiving the prized chit amount he had given his property document by way of security and when he at first became defaulter he had not issued cheque, but afterwards he has issued Ex.P.1 Cheque to the complainant company.
14. At para-3 of the cross examination, it appears there is a typographical error in recording the statement of PW.1. Relevant statement of PW.1 at para-3 page-4 of his cross examination are as below:-
"3. ಗಜತಸಗಲ ಬಡಡರನಜನ ಕರಲಯಜವ ಸಮಯದಲಲ ಭದಪತಲಗಪಗ ಚಲಕಕ ಪಡಲಯಜವವದಲಲ. ನಪ-8 ರಲಲ ಕಲಕನಲಯ ಕಪಲಯನಲಲ ಡವಡಲಯಟಕ ಮತಜಸ ಬಡಡಯನಜನ ನಮಕದಜ ಮಪಡಜತಲಸತವಲ. ನಪ-8 ರ ಪಪಕಪರ ಆಪಪಧತರಜ 18 Crl.A.No.25024/2018 ಬರಬಲತಕಪದ ಮತಸಕಕಯತ ಹಲಚಚಗಲ ಪಪವತಸದಪದರಲಯದರಲ ಸರ. ನಪ-1 ಚಲಕಕ ನಜನ ನಪನಜ ಭತರ ಮಪಡಕಲಕಯಡರಜವವದಲಲ.
As per PW.1's statement in the above cross examination it has been recorded that the Accused has paid more than the amount which was due from him as per Ex.P.8 ledger statement. Said statement of the PW.1 is in the form of admitting the suggestion put forth to him. But, Ex.P.8 does not show that the Accused has paid the amount which was due or more than the amount which was due to the complainant. Ledger statement marked at Ex.P.8 shows that the Accused has made payment regularly from May 2008 to January 2009. Then he has defaulted from February 2009 to July 2009. Then he has paid some amount in August 2009 and again defaulted from September 2009 to January 2010. Then paid Rs.25,000/- in February 2010 and 19 Crl.A.No.25024/2018 defaulted from March 2010 upto October 2010, then paid Rs.23,033/- during November 2010 and defaulted in December 2010 and paid Rs.10,000/- in January 2011 and defaulted continuously from February 2011 to December 2012. Therefore, it appears the above statement at para-3 recorded in the form of admission by PW.1 is a typographical error. Instead of recording it in negative it appears it has been recorded in affirmative.
15. In the grounds of appeal Appellant contends that his evidence and documents were not considered by the Learned Trial Judge in passing the judgment. But, the lower court records show that the Accused has neither adduced oral evidence nor documentary evidence in support of his case. Therefore, said contention taken in the grounds of appeal appears to be superficial.
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Crl.A.No.25024/2018
16. To summarise, Appellant/Accused has not denied that Ex.P.1 cheque belongs to him. Nor has he denied his signature in the said cheque, which is marked as per Ex.P. 1(a). Essence of cross examination of PW.1 shows that indeed Appellant/ Accused was a subscriber to the Chit and he has successfully bid the chit and received the price amount. When issuance of cheque and signature therein are admitted and the evidence clearly shows that Appellant/Accused being a subscriber to the chit had received the prized chit amount and has become defaulter, presumption under section 139 of Negotiable Instruments Act,1881 being in favour of the complainant that the Appellant/Accused has issued cheque in question for discharging his legally enforceable debt or liability, Appellant/Accused has not chosen to produce any evidence or elicit any circumstances in the cross examination of PW.1 to 21 Crl.A.No.25024/2018 show that he did not have legally enforceable debt for issuing Ex.P.1-Cheque. As such, only conclusion in my opinion which can be arrived at on the basis of the material on record is that the Appellant/Accused had issued cheque as per Ex.P.1 to discharge his legally enforceable debt in a sum of Rs.3,22,021/- and thereafter has failed to maintain sufficient fund in his account or otherwise ensure that the cheque was not dishonoured. After the cheque was dishonoured, despite receiving the intimation about the said fact and demand made on him to pay the cheque amount within a period of 15 days from the date of service of legal notice, Accused having failed to respond to the same or to make payment, has clearly incurred the liability for the offence under section 138 of Negotiable Instruments Act,1881. Therefore, I am of opinion that the offence under 22 Crl.A.No.25024/2018 section 138 of Negotiable Instruments Act,1881 has been clearly proved against the Appellant/Accused.
17. Cheque amount being Rs.3,22,021/- which was due as on 20.12.2012 which is the date of the cheque, impugned judgment of conviction and order of sentence has been passed on 23.01.2018, by imposing fine of Rs.3,72,021/- by ordering that out of the said amount a sum of Rs.3,62,021/- should be paid as compensation to the complainant. If the interest on the amount which was due as on the date of the cheque is calculated upto date of the judgment i.e, on 23.01.2018, which is for about six years and litigation expenses is taken into account, I am of opinion that the fine imposed by the Learned Trial Judge is not disproportionate to the facts and circumstances. Therefore, I am of opinion that the impugned judgment of conviction and order of 23 Crl.A.No.25024/2018 sentence is in accordance with law which does not call for interference at the hands of this court. Consequently, Point Nos.2 and 3 are answered in the affirmative and point No.4 is answered in the negative.
18. Point No.5:- For the foregoing reasons, I proceed to pass the following :-
O R D E R Criminal Appeal filed by the Appellant/Accused under Sec.
374(3) of the Cr.P.C., is hereby dismissed.
Judgment of conviction & Order of sentence and award of compensation against Appellant dated.23.01.2018 passed in C.C. 24 Crl.A.No.25024/2018 No.53965/2015 by the Learned LVIII Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru is hereby confirmed.
Bail bonds and surety bonds are discharged.
Retransmit LCR along with certified copy of this Judgment to the Lower court without delay, by not later than fifteen days.
--
(Dictated to the Stenographer, transcript thereof, is corrected and then pronounced by me on this the 17th day of March, 2021)
--
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil & Sessions Judge Mayo Hall, Bengaluru.
vk 25 Crl.A.No.25024/2018 (Judgment pronounced vide separate Judgment) O R D E R Criminal Appeal filed by the Appellant/ Accused under Sec. 374(3) of the Cr.P.C., is hereby dismissed.
Judgment of conviction & Order of sentence and award of compensation against Appellant dated.23.01.2018 passed in C.C.No.53965/2015 by the Learned LVIII Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru is hereby confirmed.26
Crl.A.No.25024/2018 Bail bonds and surety bonds are discharged.
Retransmit LCR along with certified copy of this Judgment to the Lower court without delay, by not later than fifteen days.
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil & Sessions Judge Mayo Hall, Bengaluru.27
Crl.A.No.25024/2018
1. 2008 ರ ಜಜಲಲಲಯಯದ ಆಪಪಧತರಜ ಹಣ ತಲಗಲದಜಕಲಕಯಡ ನಯತರ ಹಣ ಪಪವತ ಮಪಡರಜವವದಲಲ. ನನನ ಪಪಕಪರ ಆಪಪಧತರಜ ಆಗಸಸಸಯದ ಹಣ ಪಪವತ ಮಪಡರಜವವದಲಲ. ಆಪಪಧತರಯದ ಭದಪತಲಗಪಗ ಆಸಸಗಲ ಸಯಬಯಧಪಟಸ ದಪಖಲಲಗಳನಜನ ಪಡಲದಜಕಲಕಯಡರಜತಲಸತವಲ. ಆಸಸಗಳಜ ಬಲಯಗಳಕರನ ಕಪಡಜಗಲಕತಡ ನವಲತಶನಕಲಕ ಸಯಬಯಧಪಟಸದ ದಪಖಲಲಯಪಗರಜತಸದಲ. ದದ29.07.2008 ರಯದಜ ಆಸಸ ದಪಖಲಲಯನಜನ ಭದಪತಲಗಪಗ ಪಡಲದಜಕಲಕಯಡರಜತಲಸತನಲಯದರಲ ಸರ. ಆಪಪಧತರಜ ಮದಲ ಬಪರಗಲ ಹಣವನಜನ ವಪಪಸಜಸ ಮಪಡಲಜ ವಫಲರಪದ ಸಮಯದಲಲ ಚಲಕಕ ಕಲಕಟಸರಜವವದಲಲ ಎಯದರಲ ಸರ. 2012 ಡಸಲಯಬರನಲಲರ ಆಪಪಧತರಜ ಚಲಕಜನಸ ಕಲಕಟಸರಜತಪಸರಲ.
2. ಗಜತಸಗಲ ಬಡಡರನಜನ ಕರಲಯಜವ ಸಮಯದಲಲ ಭದಪತಲಗಪಗ ಚಲಕಕ ಪಡಲಯಜವವದಲಲ. ನಪ-8 ರಲಲ ಕಲಕನಲಯ ಕಪಲಯನಲಲ ಡವಡಲಯಟಕಮತಜಸ ಬಡಡಯನಜನ ನಮಕದಜ ಮಪಡಜತಲಸತವಲ. ನಪ-8 ರ ಪಪಕಪರ ಆಪಪಧತರಜ ಬರಬಲತಕಪದ ಮತಸಕಕಯತ ಹಲಚಚಗಲ ಪಪವತಸದಪದರಲಯದರಲ ಸರ. ನಪ-1 ಚಲಕಕ ನಜನ ನಪನಜ ಭತರ ಮಪಡಕಲಕಯಡರಜವವದಲಲ.