Bangalore District Court
Saraswathi vs Jayappa M N on 21 December, 2024
KABC010250042021
IN THE COURT OF THE LVIII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH-59), BENGALURU CITY
Dated this the 21st day of December 2024
PRESENT
Sri. KRISHNAMURTHY J.B., B.A., LL.B.,
LVIII Addl. City Civil & Sessions Judge (CCH-59),
Bengaluru.
: CRIMINAL APPEAL NO.912/2021 :
APPELLANT : Saraswathi,
W/o Shivanna,
Aged about 42 years,
R/o # 58, 2nd Cross, 3rd Main Road,
Magadi Main Road,
Kottigepalya,
BENGALURU - 560 091.
(By Sri. B.M.L., Advocate.)
-V/S-
RESPONDENT : M.N. Jayappa,
S/o late Mayanna,
Aged about 36 years,
R/o 4th Cross, 1st Main,
Magadi Main Road,
2 Crl. A.912/2021
Kottigepalya,
BENGALURU - 560 091.
(By Sri. C.P.P., Advocate.)
*****
JUDGMENT
This is an accused's appeal filed under Section 374(3) of Cr.P.C., seeking to set aside the judgment of conviction and order of sentence dated 22.10.2021 passed in C.C. No.15920/2018 on the file of the XXII Additional Chief Metropolitan Magistrate Court, Bengaluru, for the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred to as 'The Act' for brevity) and to acquit her for the said offence by allowing this appeal, in the ends of justice.
2. For the sake of convenience, the rank of the parties is referred as referred before the trial court.
3(a). Before adverting to the grounds urged by the appellant/accused, it is necessary to note down the brief 3 Crl. A.912/2021 factual scenario of the case of the complainant as stated in the complaint is that, accused is the absolute owner of land bearing No.44/2, Khatha No.888, measuring east-west 15 feet and north-south 40 feet, situated at Hosahalli, Gollarapalya Village, Yeshavantpura Hobli, Bengaluru North Taluk, which she has purchased under the registered sale deed dated 19.02.2014 from its previous owner. The accused was in need of money and as such she approached the complainant offering to sell the said land. The complainant intended to purchase the land and hence he entered into registered agreement of sale with accused on 15.04.2015. The complainant paid Rs.5,00,000/- to the accused and agreed to pay the balance consideration out of total Rs.7,20,000/- on the date of registration. The complainant was ever ready for registration of the sale deed. But accused failed to provide necessary documents. The period mentioned in the sale agreement came to be expired and both of them again entered into subsequent agreements.
4 Crl. A.912/2021 3(b). It is further averred by the complainant that accused failed to provide necessary documents and again requested him to pay further amount of Rs.2,00,000/-. As such, complainant paid Rs.2,00,000/- and the total amount received by the accused was Rs.7,00,000/-. In spite of that the accused failed to execute register sale deed as agreed. After negotiations, complainant & accused settled the issue for Rs.12,00,000/- and accused agreed to pay the amount of Rs.12,00,000/- to complainant. In that regard, accused issued cheque bearing No.838951 dated 03.04.2018 for Rs.12,00,000/- drawn on State Bank of India, Nagarabhavi II Stage Branch, Bengaluru, in favour of complainant. The complainant presented the said cheque for encashment. But it came to be dishonoured with shara 'funds insufficient' on 05.04.2018. As such, complainant got issued legal notice on 01.05.2018 by RPAD calling accused to repay the said cheque amount. The said notice was served on the accused on 04.05.2018. However, accused did not repay the cheque amount. Hence, without any alternative, 5 Crl. A.912/2021 complainant was forced to present this private complaint under Section 200 Cr.P.C., against accused, for the offence punishable under Section 138 of the Act.
4. After presenting the said complaint, the learned Magistrate has recorded the sworn statement of complainant, taken cognizance and registered criminal case. In response to the notice, accused had appeared before the Trial Court through her counsel and she was enlarged on bail. On subsequent date, when accusation for the offence punishable under Section 138 of the Act was recorded by the learned trial judge, accused pleaded not guilty and claimed to be tried.
5. During the course of trial, in order to prove his claim, the complainant got examined himself as PW1 and produced 16 documents and got marked at Ex.P1 to P16 and closed his side.
6 Crl. A.912/2021
6. After closing the evidence by the complainant, the statement of the accused under Section 313 of Cr.P.C., was recorded by the Trial Court. But, the accused has denied all the incriminating circumstances appearing in the evidence of the complainant. Even accused has not chosen to lead any defence evidence on her behalf. Thereafter, matter was posted for arguments.
7. After hearing both the parties and by considering the material on record, the learned Trial Judge has found the accused guilty of the offence punishable under Section 138 of the Act. Accordingly, the accused was convicted and sentenced to pay fine of Rs.12,75,000/-. In default, she shall undergo simple imprisonment for a period of six months. Out of the total fine amount, sum of Rs.10,000/- was ordered to be remitted to the State.
8. Being aggrieved by the said judgment of conviction and order of sentence, the accused has preferred this appeal among the following grounds: -
7 Crl. A.912/2021
1. The impugned judgement passed by the learned trial Judge is contrary to the facts, material and evidence placed on record and as such the same is liable to be set aside.
2. The learned magistrate has failed to consider the fact that Ex.P1 cheque is belonging to joint account of Shivanna & Saraswathi; but in Ex.P1 only the signature of appellant is found and there is no authroization from another account holder to issue the cheque and as such Ex.P1 cheque is invalid.
3. The learned magistrate has failed to consider the fact that in Ex.P1 cheque it has been clearly mentioned that the said instrument is valid for Rs.10.00 lakh and below; but Ex.P1 has been issued for Rs.12.00 lakh and as such Ex.P1 cannot be considered as valid negotiable instrument and hence question of committing offence under 138 of the Act does not arise at all.
4. The learned magistrate has failed to consider the fact that PW1 has clearly admitted that he has lent the amount by way of cash and he is not an income tax assessee. But, as per RBI guidelines cash transaction upto Rs.20,000/- is permissible. That apart, respondent has not mentioned the impugned transaction in his income tax and as such the said 8 Crl. A.912/2021 undisclosed amount presumed to be unaccounted amount which is not legally recoverable as per the decisions of the Hon'ble Apex Court.
5. The learned magistrate has failed to consider the fact that Ex.P3 legal notice has not been duly served on the appellant.
6. The learned magistrate has failed to consider the fact that respondent has not proved his financial capacity to lend such huge amount to appellant.
7. The impugned judgment of conviction and order of sentence is unlawful, arbitrary and as such same is required to be set aside and accused is entitled for acquittal.
9. After presenting this appeal, the Hon'ble Principal City Civil & Sessions Judge made over the same to this Court, for disposal in accordance with law.
10. In response to the notice, the respondent/ complainant appeared before this Court through his counsel. Trial court record called and placed along with this appeal.
9 Crl. A.912/2021
11. The learned counsel for accused submitted written arguments reiterating the grounds urged in her appeal memorandum and prayed to allow this appeal by setting aside the impugned judgment and to acquit the accused.
12. On the contrary, learned counsel for the complainant has vehemently argued that in order to drag the proceedings and to avoid paying fine amount accused has preferred this appeal. Further, the complainant has produced sufficient oral & documentary evidence and succeeded to prove all the legal requirements of the offence punishable under Section 138 of the Act. Accordingly, the learned Magistrate has rightly drawn the presumption in favour of the complainant as the said cheque was issued towards legally recoverable debt. Though the said presumption is a rebuttal presumption, but the accused has not placed any cogent evidence to rebut the same. Therefore, the learned Magistrate has not committed any error in appreciating the oral & documentary evidence 10 Crl. A.912/2021 placed by both the parties and passed the impugned judgment. Even in this appeal, except urging vague grounds, no valid grounds made out by the accused to entertain this appeal. Hence, the appeal preferred by this accused lacks merits and the same deserves to be dismissed.
13. During pendency of appeal, accused has filed I.A. Nos.IV & V under Section 391 and under Section 386(b) of Cr.P.C., seeking permission to produce the documents i.e., copies of bank statements, by way of additional evidence and for remand of the case to the Trial Court contending that recently she came to know about the said documents wherein it has been clearly mentioned that complainant received Rs.1,60,000/- on 01.01.2015 through cheque bearing No.838953 and Rs.2,40,000/- on 19.09.2015 through cheque bearing No.838959 and remaining Rs.1,00,000/- has been paid by accused through another cheque. Thus, accused has repaid the amount claimed by complainant. The said documents are much necessary to prove her case. Due to unavoidable circumstances, she could 11 Crl. A.912/2021 not produce those documents before the Trial Court. If the application is not allowed, she will be put to irreparable loss & injury; on the other hand, no injury would be caused to respondent. Hence, prayed to allow the application.
14. Per contra, learned counsel for complainant has opposed the said applications by filing objections wherein it is contended that by filing said applications accused is attempting to introduce new set of facts. Even, accused has not produced any oral or documentary evidence on his behalf before the Trial Court. Now, with an intention to drag the proceedings, she has filed these false applications. If the said applications are allowed, great hardship & injury would be caused to complainant; on the contrary, no hardship would be caused to accused. Hence, prayed to reject the application.
15. In view of the submissions made by the learned counsel for complainant and also grounds urged by the accused in this appeal, the points that would arise for my consideration are: -
12 Crl. A.912/2021
1. Whether I.A. Nos.IV & V filed by appellant deserves to be allowed ?
2. Whether the impugned judgment of conviction and order of sentence suffer from any serious legal infirmities and the same is requires to be interfered by this Court?
3. Whether the accused is entitled for acquittal?
4. What order?
16. Heard both side and perused the records.
17. My findings on the aforesaid points are as follows: -
POINT NO.1 - In negative
POINT NO.2 - In negative
POINT NO.3 - In negative
POINT NO.4 - As per final order
for the following:-
: REASONS:
18. POINT NO.1: During pendency of appeal, the
accused has filed I.A. Nos.IV & V under Sections 391 & 386(b) Cr.P.C., seeking permission to adduce additional evidence by 13 Crl. A.912/2021 producing copies of bank statements and to remand the matter to the Trial Court for fresh consideration contending that due to unavoidable circumstances she could not produce those documents before the Trial Court which are much essential to prove her case and the bank statements clearly show that she has repaid Rs.1,60,000/- on 01.01.2015, Rs.2,40,000/- on 19.09.2015 and Rs.1,00,000/- through another cheque. The complainant contended that in order to drag the matter the applications came to be filed and now she is trying to introduce new set of facts. Further the documents which supposed to produce are in the custody of accused and she has not produced said documents during trial. In order to fill-up the lacunae the present applications came to be filed and he prayed for dismissal of I.A.s as these applications are afterthought.
19. It is pertinent to note that the Court may permit to lead additional evidence under Section 391 of Cr.P.C., when such evidence is not within the knowledge of a party and 14 Crl. A.912/2021 with due diligence is not secured and further the party making such request to produce additional evidence has to made an attempt to produce the same during Trial. On perusal of material on record, no where the accused has made attempt to produce these documents. It is further contended that, in order to show that accused had repaid the amount of Rs.5,00,000/- to complainant the bank statement is required to prove her case, but the accused nowhere stated that these document are not within her knowledge and she has made attempt to produce those documents at the time of Trial. In this regard, The Hon'ble Apex Court in 2024 Live Law SC (64) (Ajit Sinh Chehugi Rathod v. State of Gujarat & Anr. ) has held that the power to record additional evidence under Section 391 of Cr.P.C., should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the such facts given rise to such prayer came to like at a later stage during pendency of the appeal and that non-recording of 15 Crl. A.912/2021 such evidence may lead to favour of justice. In this case also, accused has not tried to produce said bank statements before the Trial Court which are much within her knowledge and at same time she has not assigned any reason for non- production of those documents. Even she never stated about the documents which are supposed to be produced as additional evidence at time of recording of statement under Section 313 of Cr.P.C. Hence, this Court is of the opinion that the accused has not made out sufficient grounds to allow the applications and hence, same are deserve to be dismissed. As such, point No.1 is answered in the 'negative'.
20. POINT NOS.2 & 3: Since both these points are interlinked with each other, they are taken up together for discussion, in order to avoid repetition of facts and evidence.
21. On perusal of entire material on record, it is not disputed that Ex.P1 cheque and signature found therein 16 Crl. A.912/2021 belongs to the accused. When the said cheque was presented by the complainant for encashment within its validity time, the same came to be dishonored and returned with endorsement 'insufficient funds' as per Ex.P2. After receipt of the said endorsement, within 30 days, complainant has caused legal notice to this accused on 01.05.2018 as per Ex.P3 calling upon her to pay the cheques amount within 15 days from the date of receipt of said legal notice. The said notice sent through RPAD was duly served on accused as per Ex.P3 postal receipt. After receipt of the said notice, the accused has not given any reply nor repaid the cheque amount. Within one month from the date of service of notice the complainant has presented this private complaint against accused for the aforesaid offence.
22. During the course of his evidence, PW1 has clearly deposed that, the accused has issued cheque at Ex.P1 towards discharge of legally recoverable debt. The 17 Crl. A.912/2021 oral evidence of complainant/PW1 is corroborated with documentary evidence and succeeded to prove all the legal requirements of the offence punishable under Section 138 of the Act. Once the complainant has made out all the legal requirements of the said offence, the Court is bound to draw legal presumption as provided under Section 139 of the Act, as the said cheque was issued towards discharge of an antecedent liability. Therefore, the learned Magistrate has rightly applied the principle rendered by the Hon'ble Apex Court in 2019 SC 1876 (Rohitbhai Jivan Lal Patel v. State of Gujarat & Anr.), wherein it has been held that once the initial burden is discharged by the complainant that the cheque was issued by the accused and the signature and the issuance of the cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption under Section 139 of the N.I. Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of 18 Crl. A.912/2021 any debt or other liability which is in favour of the complainant/holder of the cheque, in that case, it is for the accused to prove the contrary.
23. No doubt, it is settled principle of law that the said presumption is not conclusive presumption and it is rebuttal presumption. Then, it is for the accused, to place some material to rebut said presumption either by producing any oral & documentary evidence or by eliciting his defence during the course of cross-examination of the complainant.
24. In this case, in order to rebut the said presumption, learned counsel for accused cross-examined PW1. However, accused did not led any defence evidence on her behalf.
25. In this appeal, the accused has attacked the findings of the learned Magistrate on the very same defence as urged before the learned Magistrate in the form of 19 Crl. A.912/2021 grounds by urging that, first of all, the complainant has not proved Ex.P1 cheque was issued towards legally recoverable debt. The accused has further contended that Ex.P1 cheque is joint account cheque and accused only signed on the cheque; another person viz., Shivanna neither signed nor authorized to sign on the cheque. Further, in Ex.P1 it is printed as valid only for Rs.10,00,000/- and the amount mentioned in Ex.P1 is Rs.12,00,000/-. Hence, Ex.P1 is not valid negotiable instrument. Further, accused has contended that as admitted by complainant/PW1 during his cross-examination that he is not income tax assessee and as per the guidelines of Reserve Bank of India any transaction more than Rs.20,000/- must be paid through account. Hence, there is violation of RBI guidelines. The accused further contended that complainant has no financial capacity to pay the amount mentioned in Ex.P1 and no notice was served on accused as required under Section 138 of The Act. Further, Ex.P5 advance sale agreement is executed by accused at the instance of the 20 Crl. A.912/2021 complainant to collect interest and amount paid to other persons viz., Smt. Ningamma & Smt. Jyothi and complainant has misused said agreement and hence he has prayed for acquittal of accused.
26. The contention of accused is that Ex.P1 cheque is signed by accused only and another person has not signed on it, as it is joint account cheque and hence it is not valid negotiable instrument. In this regard, the Court would like to refer judgment of our Hon'ble High Court reported in ILR 2008 KAR 3922 (Suresh Kallappa Makavi v. Madan Bindurao Desai) wherein it has been held that the case can be proceeded against the person who signs it because, a joint account can be operated by either of the holders. Further, The Hon'ble Apex Court in (2013) 8 SCC 71 (Aparna A Shash v. Sheth Developers Pvt. Ltd., & Anr. ) has held that if the cheque is issued and signed by one of joint account holder, one who signed the cheque is liable to be prosecuted under Section 138 of The Act. As such, 21 Crl. A.912/2021 prosecuting the case against another person does not arise and hence the contention of accused that Ex.P1 is joint account cheque and the accused only singed and another person Shivanna has not signed on it and as such it is not a negotiable instrument, holds no water.
27. The accused further contended that complainant has not established his source of income to purchase property. The complainant has stated that he has salary income of Rs.13,500/- and also having immovable properties in the name of his father and from the income of immovable properties he has sufficient source of income to buy property and as such he entered into agreement with accused as per Ex.P5. Further complainant/PW1 has produced Ex.P11 to P16 to show his financial capacity. Ex.P11 is the experience certificate, Ex.P12 is bank statement, Ex.P14 is copy of Silk worm craft and Ex.P15 & P16 are RTC extracts of immovable properties, which clearly show that complainant has some source of income and 22 Crl. A.912/2021 these documents are corroborating with oral statement of complainant/PW1 and hence the complainant has successfully established his source of income and financial capacity to purchase the property and as such said contention of accused holds no water.
28. The next contention of accused is that the notice issued by the complainant was not properly served on her. It is pertinent to note that if the notice issued to the correct address of the accused, the same is sufficient as per Section 27 of General Clauses Act and hence this contention of the accused has no merit.
29. It is the further contention of accused that Ex.P5 agreement of sale and Ex.P6 & P7 extended agreement to sell, were executed at the instance of complainant to collect interest and amount from Smt. Ningamma and Smt. Jyothi and accused has requested to cancel the same. Instead of cancellation, complainant has filed this complaint by 23 Crl. A.912/2021 misusing the said document in order to get wrongful gain. In order to prove this contention, accused has not elicited anything from the mouth of PWs 1 to 3 at the time of cross- examination. Even accused has not adduced any defence evidence to prove her contention and hence this contention of the accused cannot be accepted without any corroborative evidence.
30. The further contention of accused is that Cheque Ex.P1 is valid only for Rs.10.00 lakh, but it is issued for Rs.12.00 lakh and hence it is not valid negotiable instrument. It is pertinent note that if the cheque is issued and signed by accused, then burden lies on accused as to why he/she issued the cheque by mentioning exceeding amount but not on complainant.
31. On the other hand, PW1 has produced sufficient oral & documentary evidence and succeeded to prove the business transaction between herself and accused and that 24 Crl. A.912/2021 accused herself has issued Ex.P1 cheque towards legally enforceable debt. When said cheque was presented for encashment, the same was dishonoured and returned unpaid. Complainant has also issued statutory legal notice within thirty days from the date of receipt of endorsement from the bank. As the accused has not repaid the cheques amount complainant has presented this private complaint within one month from the date of cause of action arose. Therefore, the learned Magistrate has rightly appreciated this entire evidence on record and by considering the joint memo passed the impugned judgment. The learned Magistrate has not committed any error in appreciating the evidence on record. The findings of the learned Magistrate consist sound reasoning and the same is not suffering from any serious legal infirmities.
32. Even if this Court being appellate Court, has re- analyzed the entire evidence on record and absolutely there is no material to come to different conclusion and to acquit 25 Crl. A.912/2021 the accused. When such being the case, the question of interfering with the impugned judgment does not arise. Therefore, appeal preferred by the accused lacks merit and the same deserves to be dismissed. In view of the above reasons, I answer point Nos.2 & 3 in 'negative'.
33. POINT NO.4: - In the result, for the aforesaid reasons, I proceed to pass the following: -
: ORDER :
The appeal preferred by the appellant/ accused under Section 374(3) of Cr.P.C., is dismissed.
Consequently, the impugned judgment of conviction and order of sentence dated 22.10.2021 passed in C.C. No.15920/2018 on the file of the XXII Additional Chief Metropolitan Magistrate Court, Bengaluru, is confirmed.
26 Crl. A.912/2021 Send back records to the Trial Court along with copy of this judgment forthwith.
Dictated to Senior Sheristedar (now under instructions to continue the work as Stenographer Grade I), transcribed & computerized by her, revised, corrected by me and then pronounced in the open Court on this the 21st day of December 2024.
Digitally signed by
KRISHNAMURTHY KRISHNAMURTHY J B
JB Date: 2025.01.04
15:42:13 +0530
(KRISHNAMURTHY J.B.)
LVIII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH-59)
BENGALURU CITY.
27 Crl. A.912/2021
Judgment pronounced in the open Court
(vide separate judgment)
ORDER
The appeal preferred by the appellant/ accused under Section 374(3) of Cr.P.C., is dismissed.
Consequently, the impugned judgment of conviction and order of sentence dated 22.10.2021 passed in C.C. No.15920/2018 on the file of the XXII Additional Chief Metropolitan Magistrate Court, Bengaluru, is confirmed.
Send back records to the Trial Court along with copy of this judgment forthwith.
LVIII ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.