Bangalore District Court
D.E.Raghunath vs N.B. Chowda Reddy on 2 July, 2020
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 2 nd day of July, 2020
PRESENT
Smt. K.KATHYAYANI., B.Com, L.L.M .
LXVI Addl.City Civil & Sessions Judge,
Bengaluru
Crl.Appeal.No.790 of 2018
Appellant: D.E.Raghunath,
S/o Erappa,
Aged about 48 years,
R/at No.3, I Floor,
Hindu Complex,
Next to Muneshwara Temple,
Mathikere Bus Stop,
Mathikere, Bengaluru - 560 054.
(By Sri.Samuel.S.Dandin , Adv.)
/Vs/
Respondent : N.B. Chowda Reddy,
S/o Byrareddy,
Aged about 49 years,
R/at No.122, L.G.Niwav,
Lakeshore Garden,
Thindlu 1st Cross,
Vidyaranyapura Post,
Bengaluru 560 097.
(By Sri.RVS,Adv.)
JUDGMENT
Appellant/accused has preferred this appeal against the respondent/complainant under Section 374(3) of Crl.A.No: 790/2018 2 Cr.P.C. being aggrieved by judgment of conviction passed in CC.No.14249/2013 on 05.04.2018 by the learned XVIII ACMM, Bengaluru.
2. For the sake of convenience, the ranks of the parties are retained as they are before the learned Magistrate Court.
3. The brief facts of the case are that;
a) The complainant has come up with the present complaint on the allegations that the accused had borrowed a loan of Rs.5,00,000/- from him on 15.08.2011 for the purpose of his business commitments agreeing to repay the same within 3 months.
b) After the stipulated period, on demand made by the complainant, the accused issued cheque bearing No.068443 dated 10.01.2012 for a sum of Rs.5,00,000/- drawn on Canara Bank, Gokula Branch, Bengaluru towards the repayment of the said loan amount and on presentation of the same for encashment, it came to be dishonoured on 23.05.2012 for "funds insufficient".
c) The complainant got issued legal notice on 13.06.2012 demanding for payment of the cheque amount Crl.A.No.790/2018 which was returned unserved with a shara that "not claimed". Accordingly, the complaint was filed.
d) During the pendency of the said complaint, the matter was referred to lok-adalath and in view of the joint memo filed by both the parties, the matter was settled on 07.10.2014, there was no award passed by the lok-adalath and the trial Court has convicted the accused for the offence punishable under Section 138 of NI Act and sentenced accordingly.
e) Being aggrieved by the said order, the accused filed an appeal before this Court in Criminal Appeal No.195/2015 wherein this Court has passed the order setting aside the order of conviction and remanded back the matter for fresh disposal in accordance with law as per the guide lines by the Hon'ble Apex Court in K.A.Govindan Kutty Menon Vs/ C.D.Shaji reported in AIR 2012 SC 719.
f) Being aggrieved by the order of this Court, the complainant has preferred criminal appeal before the Hon'ble High Court of Karnataka in Crl.Appeal.No.1393/2015 wherein the above order of this Court was confirmed.
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g) On receipt of the records from the Hon'ble High Court of Karnataka, the trial Court conducted the fresh trial. The complainant got himself examined as PW-1. Got marked 9 documents and closed his side. The accused got himself examined as DW1.
h) After hearing both sides on merits of the case and on going through the evidence on record, the trial Court convicted the accused through the impugned judgment.
4. Being aggrieved by the said judgment of conviction, the accused/appellant has approached this Court with the following grounds;
a) The impugned judgment of the Court below is totally perverse, illegal, unlawful and bad in law and the same is liable to be set aside.
b) There is no legal recoverable debt by him to be paid to the complainant. He has paid the entire amount as agreed by him before the Hon'ble High Court of Karnataka. The complainant has not approached the trial Court with clean hands.
c) The complainant had approached the Hon'ble High Court of Karnataka in Criminal Appeal No.195/2015 (in Crl.A.No.790/2018 fact, the Criminal Appeal number before the Hon'ble High Court of Karnataka is "1393/2015") only against sentence passed by the learned Magistrate which is bad in law and since the matter referred to lok-adalath, lok-adalatht has to pass the award under Section 21 of Legal Service Authorities Act.
d) The trial Court erred in convicting him and he had challenged the same before the Hon'ble High Court of Karnataka. Hence, no presumption should be taken for earlier settlement. Even after remanding the matter for fresh consideration, the trial Court utterly failed to consider this aspect and blindly came to the conclusion that he is guilty of the offence.
e) The complainant being a Managing Director of medicine distributing company doing the business through cheques and demand drafts, but only in this alleged transaction, he has falsely deposed that he had paid the loan through cash. The complainant has not produced any document to show the capacity to lend the money.
f) The cheque was issued as a security in a property transaction and same was misused by the complainant.
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g) The complainant himself admits that the said cheque presented after lapse of 6 months and as per provisions of Section 138(a) of NI Act, cheque is to be presented within 3 months from the date of issuance as per RBI notification 04.11.2011. The alleged cheque is dated 10.01.2012 and was presented on 21.05.2012. Hence, the complainant has made fraud on him. The alleged instrument ought not to be considered by the trial Court.
h) The complainant has not produced any document with regard to proof of income. The complainant admits that there is mention of this transaction in income tax returns, but he has not produced any document with regard to the same.
i) The presumption under Section 139 of NI Act is only to the extent that the cheque is issued for discharge of debt or liability and this presumption does not extend to the existence of legally enforceable debt or liability. Therefore, the complainant is under an obligation to prove the existence legally enforceable debt or liability as a matter of fact to the satisfaction of the Court.
Crl.A.No.790/2018
j) The complainant has not placed any evidence worthy of acceptance to prove the existence of legally enforceable debt or liability against the accused. The said presumption is admittedly rebuttable one.
k) He has rebutted the evidence and materials of the complainant by the mouth of complainant himself. Hence, the complainant has failed to establish his case.
l) The impugned judgment of conviction is contrary to law and facts and material and evidence placed on record and as such is liable to be set aside. Hence, prayed this Court to set aside the judgment of conviction and sentence passed and acquit him in the interest of justice and equity.
5. In response to the due service of notice by this Court, the respondent/complainant put his appearance through his counsel.
6. Secured the trial Court records.
7. The appellant/the accused and his counsel were absent despite of giving sufficient time. Hence, arguments on his behalf on merits taken as not submitted. Heard the counsel for respondent/complainant and perused the record.
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8. On the basis of the grounds made out, following points are arose for my determination;
1. Whether the accused/appellant proves the grounds urged by him in support of this appeal?
2. Whether the impugned judgment requires interference by this court?
3. What Order?
9. My findings to the above points are:
1) Points Nos.1 & 2 : Negative.
2) Point No.3 : As per final order for the following reasons.
REASONS
10. POINTS Nos.1 AND 2:- As the findings on point No.2 is consequential to the findings on point No.1, both these points are taken together for consideration.
11. The trial Court record reveals that the admitted facts of this case are;
a) the complainant has filed two cases against the accused i.e., the present case in CC.No.14249/2013 and another case in CC.No.6455/2013;
b) the cheque amount involved in both the cases is Rs.5,00,000/-;
Crl.A.No.790/2018
c) in both the cases, the accused is convicted vide separate judgments;
d) the accused has challenged both the judgments in appeal i.e., in the present appeal and in Criminal Appeal No.791/2018 on the file of this Court;
e) before the learned Magistrate, in both the cases, the parties filed joint memo on 07.10.2014 settling the dispute and accordingly, the matter was referred to lok- adalath, but no award was passed by the lok-adalath;
f) on the other hand, the learned Magistrate has passed orders convicting the accused in both the cases which were challenged before this Court in Criminal Appeal Nos.195/2015 and 196/2015 which were came to be allowed and the matters were remanded back for fresh trial;
g) the above orders were challenged by the complainant before the Hon'ble High Court of Karnataka in Criminal Appeal Nos.1393/2015 and 1394/2015 wherein the above orders of this Court were upheld; and
h) on receipt of the case file, the trial Court conducted the fresh trail in both the cases and convicted Crl.A.No: 790/2018 1 0 the accused in both the cases vide separate judgments wherein impugned judgment is in respect of the present case.
12. The accused/appellant has challenged the impugned judgment mainly on the ground that there is no legally recoverable debt to be paid to the complainant and he has paid the entire amount as agreed by him before the Hon'ble High Court of Karnataka.
13. The trial Court record reveals that in his cross examination, the complainant has admitted the suggestion that the accused has paid Rs.70,000/- to him before the Hon'ble High Court of Karnataka. But, he has denied the suggestion that the accused also paid Rs.1,50,000/- in his house and totally, the accused has paid Rs.5,00,000/-, despite of that he has filed the false case, even the accused is not in due of any amount. The complainant has also voluntarily deposed that only Rs.70,000/- is paid to him including both the cases.
14. Ex.P-8 is the certified copy of the Memo dated 18.12.2015 filed by the accused before the Hon'ble High Court of Karnataka in Criminal Appeal No.1393/2015 Crl.A.No.790/2018 which demonstrates that the accused has sought six months installment to pay the agreed/settled amount of Rs.5,00,000/-.
15. Ex.P-9 is the certified copy of the order sheet in the above criminal appeal which demonstrates that necessary interim applications were filed from time to time seeking time to make the balance payment of Rs.4,30,000/- and in the mean while, the trial Court records in both the cases were ordered to be sent back.
16. So, Ex.P-8 and 9 are in support of the voluntary statement of the complainant that only Rs.70,000/- was paid to him including both the cases. Hence, this ground of the accused in support of this appeal holds no water.
17. The other ground urged by the accused is that the complainant had approached the Hon'ble High Court of Karnataka in Criminal Appeal No.195/2015 only against sentence passed by the learned Magistrate which is bad in law and since the matter referred to lok-adalath, lok- adalath has to pass the award under Section 21 of Legal Service Authorities Act.
Crl.A.No: 790/2018 1 2
18. As noted above, it is an admitted fact that the earlier judgments passed by the learned Magistrate i.e., after filing the joint memos and referring the matter to the lok-adalath, the lok-adalath not passed the orders and the learned Magistrate has passed the judgments of conviction were challenged before this Court and they were set aside and the matters were remanded which were challenged by the complainant before the Hon'ble High Court of Karnataka where the remand of the matters for fresh consideration were confirmed and accordingly, the fresh trail were also conducted. Hence, this ground is not available for the accused now, to challenge the impugned judgment passed after fresh trail. Accordingly, this ground also holds no water.
19. The other ground of the accused is that no presumption should be taken for earlier settlement as it was challenged before the Hon'ble High Court of Karnataka and even after remand for fresh consideration, the trial Court below utterly failed to consider this aspect and blindly come to conclusion that he is guilty of the offence.
Crl.A.No.790/2018
20. The impugned judgment reveals that the trial Court has observed the settlement entered into between the parties before the Hon'ble High Court of Karnataka and the part payment made by the accused in accordance with the said settlement.
21. But, it also demonstrates that the trial Court observing the confirmation of the remand order by the First Appellate Court by the Hon'ble High Court of Karnataka, Bengaluru, the trial Court has considered the evidence let in by the parties on remand i.e. during the fresh trial after remand.
22. The impugned judgment also shows that the admitted facts, the settlement between the parties, the partial payment made by the accused and the evidence let by the parties after remand are all collectively considered by the trial Court while passing the impugned judgment. Hence, this ground also holds not water.
23. The next ground urged by the accused is that the complainant being a Managing Director of medicine distributing company doing the business through cheques and demand drafts, but only in this alleged transaction, he Crl.A.No: 790/2018 1 4 has falsely deposed that he had paid the loan through cash. The complainant has not produced any document to show the capacity to lend the money.
24. It is in the cross examination of the complainant to the question that whether he had any impediment to make the payment through DD or cheque, he has answered that since the accused was in urgent need of money, he gave it in cash.
25. The complainant has admitted the suggestion that they do the company transaction through DD and cheque. At this stage, he has voluntarily said that on faith/belief, he gave the amount in cash. He has also admitted the suggestion that there is no account with regard to the present loan and he has not shown this loan in his tax returns.
26. But, it is important to note that as noted above, the main ground urged by the accused in support of this appeal is that he has already paid the entire amount as agreed before the Hon'ble High Court of Karnataka and thus, he is not in due of any legally recoverable amount.
27. So, a question arises in the mind of a prudent Crl.A.No.790/2018 man, that when it is his case that he has not received any amount from the complainant who had no capacity to pay such a huge amount, then why should he entered into compromise that too agreeing to pay such a huge amount of Rs.5,00,000/-. Thus, present ground that the complainant has falsely deposed that he has paid the loan amount by cash and the complainant has had no capacity to pay such huge amount is not sustainable.
28. The one more ground urged by the accused is that the cheque was issued as a security in a property transaction and same was misused by the complainant.
29. The trial Court record reveals that this defence was taken first time in the cross examination of the complainant that too at the end by way of suggestion that the complainant has misused the cheque issued in respect of the site transaction between one Rekha and the accused.
30. But, to prove the above defence, in support of his oral evidence, the accused did not let in any supportive evidence. The trial Court record shows that the accused even did not try to get examine either the said Rekha or the Crl.A.No: 790/2018 1 6 witnesses if any to the said site transaction to prove his defence.
31. On the other hand, he has entered into the compromise with the complainant and also paid partial amount as noted above. Therefore, this ground of the accused in support of his present appeal also is not sustainable.
32. The other ground urged by the accused is that the complainant himself admits that the said cheque presented after lapse of 6 months and as per the provisions of 138(a) of NI Act, cheque is to be presented within 3 months from the date of issuance as per RBI notification 04.11.2011. The alleged cheque is dated 10.01.2012 and was presented on 21.05.2012. Hence, the complainant has made fraud on him. The alleged instrument ought not to be considered by the trial Court.
33. It is the case of the complainant that the cheque is dated 10.01.2012. He has presented it on 21.05.2012 and the same was returned dishonoured on 23.05.2012. In his cross examination, he has deposed that he has presented the cheque after 6 months.
Crl.A.No.790/2018
34. It is evident on record that the cheque at Ex.P-1 is dated 10.01.2012 and the return memo at Ex.P-2 is dated 23.05.2012.
35. So, with regard to the date of cheque and its presentation after expiry of 3 months, the pleadings of the complainant and the evidence on record are in support of the facts stated in the above ground.
36. But, this Court can take judicial notice that earlier the validity of the cheque was 6 months and later it was reduced to 3 months. So far the date of effect of the reduced period, this Court has no idea and there is no evidence on record in that regard. The accused has not produced the copy of the notification of the RBI referred in this ground.
37. However, it is the case of the complainant that the cheque at Ex.P-1 returned dishonoured for "funds insufficient" and the same is supported by the return memo at Ex.P-2. So, if really the validity period of a cheque as on the date of issuance of the endorsement was 3 months, the bank would have issued the same endorsement i.e., "expired cheque".
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38. Moreover, the return memo at Ex.P-2 is a printed form having many a specified reasons under many headings like; "funds, signature, stop payment, instrument, account, etc." There is one more heading at the last i.e., "other reasons".
39. Admittedly, the endorsement at Ex.P-2 is specifically under the heading "FUNDS" and the sub heading "Funds Insufficient".
40. There is presumption under Section 114 of Evidence Act, that the act done by an official is in due course of discharge of his official duty and it is only after applying his mind and it holds good unless it is rebutted.
41. Hence, it is can be safely concluded that as on the date of presentation of the cheque at Ex.P-1, it was valid cheque. Thus, this ground of the accused also holds no water.
42. The other ground urged by the accused in support of this appeal is that the presumption under Section 139 of NI Act is only in respect of legally recoverable debt and thus, the complainant has to prove Crl.A.No.790/2018 the existence of legally recoverable debt. But he has failed to establish the same.
43. As noted above, the accused has failed to establish that he has paid the entire amount as agreed before the Hon'ble High Court of Karnataka, Bengaluru and thus, there is no legally recoverable debt.
44. He has also failed to establish that the cheque at Ex.P.1 was issued for the security purpose as contended by him. He has also failed to establish that the complainant has falsely deposed that he paid the alleged loan amount in cash.
45. Admittedly, the cheque at Ex.P.1 pertains to the bank account of the accused and it is signed by him. Hence, the presumption both under Sections 118 and 139 of NI Act are available to the complainant. Hence, this ground also is not sustainable.
46. Hence, from the above observations, it is clear that the accused has failed to establish the grounds he has urged in support of the present appeal. Accordingly, I hold point No.1 in negative and consequently, point No.2 also in negative.
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47. POINT No.3:- In view of my findings on points Nos.1 and 2, I proceed to pass following order.
ORDER The Criminal Appeal filed by the appellant under Sec.374(3) Cr.P.C. is hereby dismissed.
Judgment of conviction and sentence passed by XVIII ACMM, Bengaluru in CC.No.14249/2013 dated 05.04.2018 is hereby confirmed.
Send back the LCR along with the copy of this judgment forthwith to the trial court.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 2nd day of July, 2020).
(K. KATHYAYANI ), LXVI Addl.CC & SJ, Bengaluru Crl.A.No.790/2018 Both the parties and their respective counsels are absent.
The Order is pronounced in the open Court (vide separate Order).
ORDER The Criminal Appeal filed by the appellant under Sec.374(3) Cr.P.C. is hereby dismissed.
Judgment of conviction and sentence passed by XVIII ACMM, Bengaluru in CC.No.14249/2013 dated 05.04.2018 is hereby confirmed.
Send back the LCR along with the copy of this judgment forthwith to the trial court.
LXVI Addl.CC & SJ, Bengaluru