Bangalore District Court
) Smt. K. Amudha W/O Kamal vs ) K. Nagaraj S/O Late Kumar on 30 November, 2021
IN THE COURT OF THE XIII ADDL.CITY CIVIL & SESSIONS JUDGE
MAYOHALL UNIT: BENGALURU (CCH:22)
PRESENT: - Smt. Suvarna K. Mirji, B.Com., LL.B.[Spl]
XIII Addl. City Civil and Sessions Judge,
Bengaluru.
Dated this the 30th day of November 2021
CRIMINAL APPEAL No.25085/2017
Appellant :- 1) Smt. K. Amudha W/o Kamal,
Major, Residing at No.61,
Aiyanna Compound,
Old Baiyappanahalli Main Road,
Sathyanagar, M.S. Nagar Post,
Bengaluru-560 033.
(Rep by Sri. S. Suresh Kumar, Advocate)
V/s
Respondent :- 1) K. Nagaraj S/o Late Kumar,
Aged about 22 years,
Residing at No.5,
Near Mariyamma Temple,
Sathyanagar, M.S. Nagar Post,
Bengaluru-560 003.
(Rep by Sri. A.P. Thammaiah, Advocate)
:JUDGMENT:
The appellant/accused preferred this Criminal Appeal U/s 374(3) of CRPC aggrieved by the Judgment of conviction and 2 Judgment Crl.A.No.25085/2017 sentence passed by the LVIII Additional Chief Metropolitan Magistrate, Mayohall Unit Bengaluru in CC No.54845/2015 on 05/05/2017.
2. The appellant is accused and respondent is complainant before the court below. The rank of both parties are referred before the court below.
3. The brief facts of the prosecution case is as under:-
The complainant submits that the accused is known to him as well as his family members for more than 10 years and his mother is the good friend of accused as well as other family members. The accused has been conducting private chits in different groups, accused requested his mother and his family members to participate and contribute to different group commenced from August 2011 respectively Rs.2,00,000/- each commencing from August 2011 September 2013 and another chit group for Rs.1,00,000/- was started on 10/03/2011 and another 3 Judgment Crl.A.No.25085/2017 group was started Rs.66,000/- commenced on 20/11/2011, overall the complainant has opted to contribute total amount of Rs.5,66,000/- in 4 different chits group and the total amount was contributed by complainant was Rs.20,000/- per month and all the money was pooled and collected by all the family members of the complainant, mother, brother and himself. The entire amount Rs.20,000/- per month which was contributed and paid to the accused per month for more than 40 months by his mother Sathya and his brother Murthy Raju with hope that by taking above said chit amount after maturity and in order to construct their own house and left with accused without claiming the same entire amount without bid/claim. The complainant further submits that out of Rs.5,66,000/- accused has paid Rs.40,000/- as on 30/05/2015 after all contribution and also another amount of Rs.1,81,750/- subsequently in favour of him and for balance amount accused has issued cheque for Rs.3,86,250/- dated 26/06/2015 drawn on Syndicate Bank, Banaswadi Main Road, 4 Judgment Crl.A.No.25085/2017 Bangaluru vide cheque No.335035 being full and final settlement in his favour. Though his mother and brother have contributed the above said payment for the chit, entire transaction was followed by him, hence accused has issued cheque in favour his for Rs.3,86,250/-.
4. The complainant further submits that above said cheque issued by the accused was presented for encashment by the complainant through his Bankers State Bank of India, Banasawadi Branch, Bangalore on 08/07/2015 for encashment and the above said cheque was dishonoured on 09/07/2015 stating that insufficient funds. The complainant submits that though accused has promised to honour the cheque and commitment and did not honour the cheque issued by accused without maintaining sufficient balance in her account to the above said amount without making any arrangement for honoring the cheque which has given negative impression the accused and put him in shock and surprise. That while cheque was dishonoured on 5 Judgment Crl.A.No.25085/2017 09/07/2015 he has personally met accused and brought her notice regarding the dishonoring of cheque and accused has promised to make good of the same within 10 days from the dishonour of the cheque and not made any arrangements to meet commitments as promised by accused. The accused was postponing the payment by giving false reasons by one pretext or the other and ultimately his mother has filed police complaint against the accused on 13/07/2015 and police have endorsed the complaint and further enquiry is on. The above said cheque was issued by accused to honour the payment to be made in his favour for chit payment claim and the same is recoverable legal debt from accused. That inspite of best attempts made by him, the accused has not paid the above said amount. As lost resort he issued legal notice dated:
05/08/2015 calling upon accused to make payment in his favour for Rs.3,86,250/- and the legal notice issued by the complainant dated 05/08/2015 was served on accused 08/08/2015, but accused has not issued any reply to the above said legal notice and not 6 Judgment Crl.A.No.25085/2017 made any payment in his favour. Hence the accused is committed an offences punishable U/S 138 and 142 of N I Act. The complainant prays to take cognizance of offence U/s 138 & 142 of NI Act against accused and punish according to law and direct the accused to pay above said amount of Rs.3,86,250/- along with the double amount and any other relief or reliefs and award compensation to him.
5. The Magistrate Court recorded the sworn statement of complainant and thereafter taken cognizance against the accused for the offence punishable U/s 138 of Negotiable Instrument Act and issued summons to the accused. The accused appeared before the court and released on bail. The Magistrate Court recorded plea of accused and the accused denied the same as claimed to be tried. The complainant examined as PW.1 and examined mother of the complainant as PW.2 and marked the documents ExP1 to ExP6. Thereafter the Magistrate Court recorded the statement of accused U/s 313 of Cr.PC the incriminating the evidence came 7 Judgment Crl.A.No.25085/2017 against the accused he denied the same and son of accused examined as DW.1. Thereafter on hearing the arguments of the both sides the Magistrate Court pronounced the judgment on 05/05/2017 convicting the accused for an offence punishable U/s 138 of N.I Act and sentenced the accused to pay Rs.5,85,000/-, of which Rs.5,80,000/- shall be paid as compensation to the complainant in terms of Sec.357(1) of Cr.P.C and Rs.5,000/- shall be remitted to the state. In default of payment of fine by the accused he shall undergo simple imprisonment for a period of three months. Aggrieved by the said conviction judgment of Magistrate Court the accused/ appellant preferred present appeal on following the grounds.
6. The appellant/accused submits that the impugned judgment dated 05/05/2017 is invalid, per se contrary to the facts and law and the Magistrate court has erred to note the material aspects of the said case. The Magistrate court failed to consider the basic fact as to whether the cheque was issued towards legally 8 Judgment Crl.A.No.25085/2017 recoverable debt or liability. The Magistrate court failed to appreciate the fact that the complainant failed miserably to prove that he had the wherewithal to pay a sum of Rs.20,000/- towards chit amount. The complainant failed prove that accused/ appellant was running chit business wherein it is alleged that there were forty subscribes. The Magistrate court failed to appreciated the fact that the complainant and his entire family members, even according to the version of the complainant, were earning only sum of Rs.34,000/- and out of the said amount were contributing Rs.20,000/-towards the chit amount, which is highly impossible given the economic situation and make a living at Bangalore with a meager amount of Rs.14,000/-. The Magistrate court failed to appreciate that complainant was admittedly fifteen or sixteen years of age in the year 2011 and was admittedly minor and unemployable in a corporate sector. The Magistrate court failed to appreciate that the complainant failed to prove his credentials of his employment, his salary nor the name of the employer who had 9 Judgment Crl.A.No.25085/2017 employed him. The said judgment is not maintainable either in law or on facts and it is abinitio void and liable to be set aside. The Magistrate court in mechanical manner and in big hurry and haste has passed the above said judgment. On perusal of the order sheet it is very clear that the Magistrate court has not acted in fair and judicious manner. The citations relied upon by Magistrate court don't attract to the facts of the said case. The Magistrate court with an intention to dispose of the cases has disposed it without proper application of his mind. The said judgment is not a speaking judgment and without putting to test the contentions of the complainant, based only on the affidavit evidence, has convicted the accused/appellant. The five page judgment very clearly speaks that the judge has not at all gone through the evidence nor applied his mind in convicting accused/appellant. Viewed from any angle the alleged purported chit business, even assuming to be true, is not a registered chit business, the alleged fact of the respondent/complainant presumed to be true, 10 Judgment Crl.A.No.25085/2017 conducting of unregistered chit business is forbidden in law and it is of such a nature that it defeats the provisions of Chit Act and also opposed to public policy. The said averment or consideration or the object of the alleged said transaction is unlawful and every such agreement, of which the object or consideration is unlawful, is void. Hence say of respondent/complainant in participation of unregistered chit being unlawful and being barred under law, falls within doctrine of "Ex turpi causa". The accused/appellant may be permitted to urge other grounds during the time of arguments. The appellant prays to allow the appeal setting aside the Judgment passed in CC.No.54845/2017 by LVIII ACMM, Bengaluru on 05/05/2017 and acquit her.
7. The Lower Court Records has been secured. The appellant and respondent counsels argued. Perused the records.
8. The Points arise for my consideration are as under. 11
Judgment Crl.A.No.25085/2017 (1) Whether the interference of this court in the judgment passed by the Magistrate court on 05/05/2017 in C.C. No.54845/2017 in convicting the appellant/accused for an offence U/s 138 of Negotiable Instrument Act is needed?
(2) What order?
9. My findings on the above Points are as under:
Point No.1: In Negative Point No.2: See final order for following:
:REASONS:
10. Point No.1:-
The sworn statement of complainant K. Nagaraj S/o Late Kumar recorded before the Magistrate court he filed his affidavit as sworn statement and latter same is treated as in lieu of examination in chief as PW.1 and deposed evidence that accused is known to him as well as his family members for more than 10 12 Judgment Crl.A.No.25085/2017 years and further his mother is good friend of accused as well as other family members. The accused being known each other personally to him as well as to his family members and the accused has been conducting private chits in different groups and requested him and his family members to participate and contribute to chit in different groups commenced from August 2011 respectively Rs.2,00,000/- each commencing from August 2011 and September 2013 respectively and another chit group for Rs.1,00,000/- was started on 10/03/2011 and another chit group was started Rs.66,000/- commenced on 20/11/2011 overall he had opted to contribute total amount of Rs.5,66,000/- in four different chits group and total amount was contributed by him as Rs.20,000/- per month and all money was pooled and collected by all the family members of him, mother, brother and the entire amount of Rs.20,000/- per month which was contributed and paid to the accused per month for more than 40 months by his mother Sathya and his brother Muthuraj hoping that by taking the above 13 Judgment Crl.A.No.25085/2017 said chit amount after maturity and in order to construct out own house and left the accused without claiming the same the entire amount without a bid or claim.
11. The PW.1 further deposed evidence that out of Rs.5,66,000/-, accused had paid Rs.40,000/- as on 30/05/2015 after all contribution and also another amount of Rs.1,81,750/- subsequently in favour of him and for the balance amount the accused had issued cheque for Rs.3,86,250/- dated 26/06/2015 drawn on Syndicate Bank, Banaswadi Main Road Branch, Bangalore vide cheque bearing No.335035 being full and final settlement in favour of him, though his mother and brother have contributed the above said payment for chit, entire transaction was followed by him hence accused issued cheque in favour of him for Rs.3,86,250/-. The above said cheque issued by accused presented for encashment by him through his banker State Bank of India, Banaswadi Branch, Bangalore on 08/07/2015 for encashment and above said cheque was dishonored on 14 Judgment Crl.A.No.25085/2017 09/07/2015 for insufficient funds. That though the accused promised to honor cheque and commitment and did not honor the cheque issued by accused without maintaining sufficient balance in her account to above said amount without making any arrangement for honoring the cheque which has given negative impression and put him in hardship.
12. The PW.1 further deposed evidence that while the chque was dishonored on 09/07/2015 he personally met the accused and brought her notice regarding the dishonoring of the above said cheque and the accused has promised to make good of the same within 10 days from the dishonor of the cheque and not made any arrangements to meet commitments as promised by the accused and accused was postponing the payment by giving false reasons by one pretext or the other. That the above said cheque was issued by the accused to honor the payment to be made in favour of him for the chit claim or payment and the same is an recoverable legal debt from the accused. Inspite of best attempts 15 Judgment Crl.A.No.25085/2017 made by him accused has not paid above said amount and as last resort issued legal notice dated 05/08/2015 calling upon to make payment in favour of him for Rs.3,85,250/- and legal notice issued by him dated 05/08/2015 was served to accused on 08/08/2015, but accused failed to reply to said legal notice nor made any payment in favour of him, thereby the accused had committed an offence punishable U/s 138 of N.I Act. The PW.1 prays to take cognizance of offence and punish the accused as per law. In support of oral evidence PW.1 marked ExP1 to ExP6.
13. The mother of the complainant K. Sathya W/o Kumar filed her affidavit in lieu of examination in chief as PW.2 before the Magistrate Court and deposed the evidence that the accused was her neighbor for about 25 years and was residing near her house and she know her more than 25 years. The accused was conducting private chits in different groups since 10 years and since the year 2011 she has contributed for the above sasid chit groups with her two sons with the accused in four different 16 Judgment Crl.A.No.25085/2017 groups aggregating for Rs.5,66,000/- and Rs.20,000/- was paid to the accused every month by her son Nagaraj and another son Muthuraj collectively. She is working as Maid servant in two houses and earning about Rs.8,000/- per month and her son Nagaraj earns Rs.10,000/- per month and also her another son is a Painting Contractor as such he earns more than Rs.20,000/- per month. She and her two sons have contributed to pay above said amount to the accused and after the maturity she has given Rs.40,000/- by way of cash and by adjusting the dividends and for the balance payment she has issued a cheque for Rs.3,86,250/- in favour of her son K. Nagaraj the complainant herein.
14. The PW.2 further deposed evidence that they have paid above said amount in favour of accused under good faith being she is their neighbor anticipating that she will return amount after maturity to help us to build a house of their own. That the accused has issued the above said cheque written by her son at her house and issued in favour of the complainant on 26/06/2015, 17 Judgment Crl.A.No.25085/2017 while they demanded for the repayment of the chit amount and further she has not maintaining any Bank Account as on today hence the cheque was issued in favour of the complainant. That the above said cheque for Rs.3,86,250/- was issued in favour of her son as he was holding the Bank Account and also he has also contributed for the payment of the chit amount. The above said cheque issued by the accused weas dishonoured on 09/07/2015, which was presented for encashment on 08/07/2015. She has filed a police complaint against the accused on 13/07/2015 and they have not taken any action against her and she has filed the complaint on behalf of her sons. That the accused is due to them Rs.3,86,250/- as per the complainant and they have contributed for the chit the hard earned money by them.
15. One Kumar S/o Amal examined as DW.1, he deposed evidence that accused is his mother. The contents of ExP1 cheque is not written by him. He is submitting his hand writing to the Court. Whereas accused not examined and not marked any 18 Judgment Crl.A.No.25085/2017 documents in his favour. The complainant examined as PW.1 as discussed above and deposed evidence as discussed above and in support of oral evidence PW.1 marked documents ExP1 to ExP6. The ExP1 is cheque bearing No.335045 dated 26/06/2015. The ExP2 is memo of Syndicate Bank regarding dishonor of the cheque bearing No.335045 for insufficient funds. The ExP3 is complaint given by Sathya W/o Kumar against Amuda. The ExP4 is legal notice given by complainant to the accused intimating about dishonor of the cheque bearing No.335045 and for repayment of the amount of Rs.3,86,250/- within fifteen days from the date of receipt of notice. The ExP5 is postal receipt and ExP6 is acknowledgement regarding service of notice to accused.
16. The accused not denied the ExP1 cheque belongs to her. Further the accused not denied his signature on the said cheque. As in the examination in chief DW.1 deposed evidence that in ExP1 cheque the contents are not written by him and he deposed the evidence that accused is his mother. But the accused not led 19 Judgment Crl.A.No.25085/2017 her oral evidence and not marked any documents to disprove the allegations of the complainant and also not denied her signature on ExP1 cheque. The defence of accused is that accused has taken loan of Rs.5,000/- from mother of complainant and for security purpose ExP1 blank signed cheque was given by the accused to complainant. Therefore the burden is on accused to prove said allegations, but the accused has not led evidence and also not marked any documents before the Magistrate Court to prove her defence. As per complainant, the accused has been conducting private chit business in different groups and complainant and his family members have invested in total amount of Rs.5,66,000/- in the chit funds business of the accused, when he demanded the amount the accused issued ExP1 cheque for Rs.3,86,250/- and it is dishonored as insufficient funds in the account of the accused. The complainant contention is that he issued legal notice to accused regarding dishonor of the cheque and marked ExP4 notice issued to accused and ExP6 20 Judgment Crl.A.No.25085/2017 acknowledgement regarding receipt of notice by accused and accused has not denied regarding receipt of notice from complainant and also not given any reply to the said notice. Hence the complainant has proved the ingredients of Sec.138 of N.I. Act regarding service of notice to the accused before filing of the complaint and same is to be rebutted by the accused, but accused has not led evidence and not marked any documents to disprove the contention of the complainant. Further the complainant relied upon decisions before the Magistrate Court reported in 1996 Crl. L. J 3099, wherein it is held that entire body of cheque need not be written by maker or drawer, only signature of drawer is material. But in the present case also the accused not denied the signature on the cheque and also failed to prove her defence. Hence the complainant by way or oral land documentary evidence proved that he has invested the amount in the chit funds business of the accused and the accused issued cheque ExP1 in payment of part of the amount, but said cheque is 21 Judgment Crl.A.No.25085/2017 returned dishonored as insufficient funds. Hence the trial court in its Judgement properly appreciated all these facts and properly came to conclusion in convicting the accused. Hence interference of this court in the Judgement pronounced by Magistrate court is not needed. Hence I answer point No.1 in the Negative.
17. Point No.2:-
In view of above discussion I proceed to pass the following:
:ORDER:
The appeal filed U/s 374(3) CRPC by the appellant/accused is dismissed.
The judgment passed in CC.No.54845/2017 on 05/05/2017 by the LVIII ACMM Bengaluru is confirmed.
The order of suspension of sentence passed by this court U/s 389 of CRPC stands cancelled.22
Judgment Crl.A.No.25085/2017 Send back lower court records along with certified copy of Judgment of this appeal.
(Dictated to the Stenographer, typed by him. Corrected directly in computer, taken printout, then corrected, signed and pronounced by me in the open Court on this the 30 th day of October 2021).
(Smt.Suvarna K. Mirji) XIII Addl. City Civil and Sessions Judge Mayohall Unit: Bengaluru.