Bangalore District Court
C. Muniraju S/O. Chinanna vs Age: 45 Years on 3 May, 2019
IN THE COURT OF 55TH ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE (CCH-56)
: Present :
Smt. H.G.Nagarathna, B.A., LL.B.,
th
55 Addl. City Civil & Sessions Judge,
Bangalore
Crl. Appeal. No. 672/2016
Date: The 3rd day of May 2019
APPELLANT/ C. Muniraju s/o. Chinanna,
ACCUSED : Age: 45 years, r/at No.2,
27 th Main, 4th Cross, VGS Layout,
Ejipura, Viveknagar,
Bangalore-560 047.
(By: Sri C. Pattabhiraman, Adv.)
- V/s -
RESPONDENT/ Mallesh M.C. s/o. Muddaiah,
COMPLAINANT : Age: 39 years, Prop: M/s. Mathrushree-
-Enterprises, No.41/3, 1st Main Road,
Palace Guttahalli, Bangalore-560 003.
(By: Sri P.M. Chennappa, Adv.)
JUDGMENT
This is a Criminal Appeal filed by Appellant/Accused against Respondent/complainant u/sec 374(3) of the Cr.P.C challenging the Judgment and order dated 6-5-2016 passed by the learned 21st ACMM, Bangalore in C.C.No.21175/2013 convicting the Appellant/accused.
2 Crl.A.No.672/2016
2. For the sake of convenience the "Appellant/accused"
and "Respondent/complainant" are hereinafter referred to as "accused" and "complainant" respectively.
3. The facts leading to this Crl. Appeal, in brief, are as under:-
3(a) The accused is known to him and the accused is his friend from past three years having good relationship. The complainant claims that the accused by expressing his difficulties, requested for hand loan on various dates. The complainant claims that the accused availed loan of Rs.5,00,000/- during June 2012 by assuring to repay the loan amount in March 2013. The accused in order to discharge his liability, issued post dated cheque bearing No.791204 for Rs.5,00,000/- drawn on Karnataka Bank, Murphy Town branch, Bangalore by assuring that the cheque will be honoured on its presentation. When the said cheque was presented for encashment, it was returned unpaid with the shara as "Funds Insufficient". The same was intimated to the accused through the legal notice, calling upon him to pay the cheque amount. Even after receiving the demand notice, the 3 Crl.A.No.672/2016 accused failed to pay the cheque amount, within the stipulated period. Hence the complainant approached this court contending that, the accused has committed the offence p/u/sec. 138 of N.I. Act.
3(b) The trial court took cognizance of offence and issued process against the accused. The accused appeared before the trial court through his counsel and got released on bail. The substance of accusation was read over and explained to accused. They pleaded not guilty and claimed to be tried. Accordingly the trial court has tried the case.
3(c) The complainant, in order to prove his case, got himself examined as PW1 and also examined one more witness as PW2 and produced 13 documents such as cheque, Bank Endorsement, Bank Memo, copy of Legal Notice, Postal receipt, unserved postal cover, account opening form, Signature card, Lease Agreement, Visiting Card, VAT Registration Certificate, Khatha Certificate and Khatha Extract.... etc. and got them marked as Exs.P.1 to 13. The statements of accused u/sec. 313 of Cr.P.C were recorded. Then the accused has examined himself as DW1 4 Crl.A.No.672/2016 and produced 10 documents such as FIR, copy of complaint, 'C' Final Report, Order Sheet in PCR 27/2011, Requisition, Vakalath, Statement of Account, complaint in PCR No.27/2011 and Bank Pass Book and got them marked as Ex.D.1 to Ex.D.10.
3(d) The learned trial judge heard both side arguments and raised the following points for consideration:
1) Whether complainant proves that the accused had issued a cheque bearing No.791204 for Rs.5,00,000/- drawn on Karnataka Bank, Murphy Town branch, Bangalore to discharge his liability?
2) Whether the complainant proves that the accused has committed an offence punishable U/Sec. 138 of N.I. Act?
3) What order?
3(e) The learned trial judge has answered the point No.1 and 2 are in the affirmative and has convicted the accused of the offence p/u/sec. 138 of N.I Act by the impugned Judgment and order dated. 6-5-2016. The learned trial judge has ordered that the accused shall pay the fine of Rs.5,10,000/-; in default of payment of said fine amount, the accused shall undergo simple imprisonment for a period of ten months; out of the said fine 5 Crl.A.No.672/2016 amount of Rs.5,00,000/- shall be paid to the complainant as compensation, as provided u/sec. 357 of Cr.P.C, and Rs.10,000/- shall be remitted to the state as fine.
4. The accused, being aggrieved by the Judgment and order dated. 6-5-2016, 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.
2) The important admissions by the PW1 are not at all considered judicially by the trial court while passing the impugned Judgment and order.
3) The trial court has come to conclusion that as a GPA holder the respondent has leased his mother's property and received a sum of Rs.7,00,000/- from the lessee, but in the cross-
examination the respondent stated that his mother never executed any GPA in his favour this admitted facts were not judicially considered by the trial court.
4) The respondent is totally a stranger to the appellant and there was no any transaction taken place between them at any point of time muchless in the month of May or June 2012 for such huge amount.
5) The impugned Judgment is devoid of merits and has resulted in miscarriage of justice.
6 Crl.A.No.672/2016Because 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.
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,
7 Crl.A.No.672/2016
Point No.2 : In the Negative,
Point No.3 : As per final order for the following:
REASONS
Point Nos.1 to 2 :-
10. This is an appeal filed by the appellant u/sec. 374(3) of Cr.P.C to set-aside the orders passed by the trial court in C.C.No.21175/2013 dt.6-5-2016 in convicting the accused for the offence u/sec.138 of N.I. Act and sentence him to pay a fine of Rs.5,10,000/- in default thereof he shall undergo simple imprisonment for ten months and out of the said amount, Rs.5,00,000/- shall be paid to the complainant as compensation, as provided U/s. 357 of Cr.P.C. and Rs.10,000/- shall be remitted to the state cost.
9. Now let us scrutiny the evidence on record whether appellant has rebutted the presumption arises u/sec.139 of N.I. Act to held that the cheque in question was not at all issued for legally recoverable debt or else the respondent has proved the case that cheque in question was issued towards legal liability to invoke section 139 of the N.I. Act. The cheque in question is a sum of Rs.5,00,000/- said to be issued by the appellant towards 8 Crl.A.No.672/2016 debt. It is stated that the appellant and respondents were friends and they were in good books and the accused expressed his financial difficulty and borrowed loan of Rs.5,00,000/- and also issued cheque of Rs.5,00,000/- bearing No.791204 drawn on Karnataka Bank, Murphy town branch, Bangalore and the said cheque was present but it was bounced due to insufficient funds. Legal notice caused, but not response nor repaid the cheque amount. Hence Criminal actions invoked against the appellant by filing the complaint.
10. In the evidence of PW1 he has stated same as in his complaint averments and Ex.P.1 to Ex.P.6 marked. Ex.P.1 is the cheque in question, Ex.P.2 is the Banker's memo, Ex.P.3 Legal Notice, Ex.P.4 is the RPAD receipt, Ex.P.5 Return of RPAD cover, Ex.P.6 is the postal letter. In the cross-examination much has been questioned with regard to the issuance of cheque of Rs.5,00,000/- on the date of payment of sum of Rs.5,00,000/- and he denied that the signature on the cheque does not belongs to the appellant and it is the signature of the complaint himself and he himself has filled the cheque and signed on it. If the PW1 9 Crl.A.No.672/2016 has stated that he has taken the money from his mother at the time of giving the same to the appellant. Now coming to the evidence of PW2, who is the branch manager, who spoke that there is a difference in the signature on the cheque Ex.P.1 and also specimen signature in the Bank card Ex.P.8 and he has also stated that if there is minor difference in the signature on the cheque and if the amount is insufficient the cheque will be return to the holder as the dishonour of the cheque. The bank endorsement Ex.P.2 discloses that the funds insufficient. Legal Notice caused which is at Ex.P.6, which was returned unserved. Ex.P.9 is the lease deed executed between Smt.Puttathayamma in favour of B.Krishnamurthy. Now coming to the evidence of DW1 is concerned he has stated that he does not know the complainant and this is the first time he seen the complainant. He denied the signature on Ex.P.1 in the cross-examination and he admitted his signature on vakalath which is at Ex.D7, Ex.D.7(a) is the signature.
10. The disputed document cheque in question had been referred to forensic lab and the opinion of the expert is the person 10 Crl.A.No.672/2016 who wrote "S1 to S7" also wrote signature marked "Q". Sri C.Muniraju there is a agree perfectly between questioned and standard signature there is a similarities in connection with strokes in between Muni and raju and the commencement of the letters spacing between C. and M and I and R are catechistically similar in questioned documents "S1 to S7". There is no sign of forgery. The questioned document is also executed with the same freedom in stroke as the standard signatures and basing upon the similarities and writing characteristics, habits unique information of small letters among the questioned and standard signature, it is concluded that the signatures questioned document "S1 to S7"
document are written by the one and the same person. Therefore, considering the handwriting expert's opinion and also the evidence on record it is clear that cheque in question was issued towards legally recoverable debt which was taken by the appellant for his financial needs. Therefore, the respondent has proved that there is a legally recoverable debt for which the cheque in question was issued for discharge of liability. Therefore, the orders of the trial court is based upon the sound principles of law and fact and further in recent judgment of our apex court of 11 Crl.A.No.672/2016 the land in Crl.A.No.230-231/2019, decided on 06-02-2019 wherein their lordships have held that, even a blank cheque voluntarily signed and handed over by the accused would attract presumption U/s.139 of NI Act. Therefore, the documents produced by the appellant in Ex.D.1 to Ex.D.10 does not rebutted the presumption arises u/sec.138 of N.I. Act. Therefore, the orders of the trial court is based upon sound principles of Law and no interference is called for. Accordingly I answer point No.1 is in the Affirmative and point No.2 is in the Negative. Point No.3:
11. Keeping in view the findings already given on point Nos.1 and 2 above, I proceed to pass the following:
ORDER This Crl. Appeal No.672/2016 filed by appellant/Accused u/sec.374(3) r/w Sec. 401 of Cr.P.C is hereby dismissed.
2) The conviction order passed by the trial court in convicting the accused and ordered sentence him to pay a fine of Rs.5,10,000/-, in default thereof he shall undergo simple imprisonment for ten months. Out of the said amount, Rs.5,00,000/- shall be paid to the 12 Crl.A.No.672/2016 complainant by way of compensation u/sec. 357 of Cr.P.C and out of which Rs.10,000/- payable to state in the fine amount is hereby confirmed.
3) 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 3rd day of May 2019.) (H.G.Nagarathna) th 55 Addl. City Civil & Sessions Judge, Bangalore.