Bangalore District Court
K.T.Doreswamy vs S/O Thopaiah on 26 April, 2018
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 26th day of April, 2018
PRESENT:
Sri.Nanda Kumar.B, BAL, LLB.,
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
CRIMINAL APPEAL No.1406/2015
APPELLANT/ K.T.Doreswamy
ACCUSED : S/o Thopaiah,
Aged about 55 years,
Residing at No.116,
6th Main Road, 1st Cross,
Shankar Nagar,
Bengaluru - 560 096.
(By Sri.Shankar M. Naik, Advocate)
- Versus -
RESPONDENT/ Veeresh Babu B.V.
APPELLANT : S/o Late.N.Veerabhadraiah,
Major,
Residing at No.9, BTS Depot Road,
BEML 5th Stage,
Rajarajeshwari Nagar,
Bengaluru.
(By Sri.G.N., Advocate)
JUDGMENT
The appellant/accused has preferred this appeal under Sec.374(3) Cr.P.C., challenging the judgment 2 Crl.Apl.1406/2015 passed by the XXII Addl. Chief Metropolitan Magistrate, Bangalore City, in C.C.24358/2012 dated 21-10-2015, whereby the appellant has been convicted for the offence punishable under Sec.138 of the Negotiable Instruments Act and sentenced to pay fine of Rs.11,00,000/-.
2. The appellant was the accused and respondent was the complainant before the trial court. For the sake of convenience, the appellant and the respondent are assigned the same rank in this appeal as assigned to them by the trial court.
3. The brief facts leading for disposal of this appeal are as under:
It is the case of the complainant that, the accused is well known to him and he (the accused) is running an industry in the name and style as 'M/s Industrial Metallic Painting Company'. In the month of January-2011, the accused borrowed a sum of Rs.23 lakhs from the complainant in connection with the said industry, 3 Crl.Apl.1406/2015 agreeing to repay the same within few months. However, the accused failed to repay the said amount. Hence, on persistent demands by the complainant, the accused issued 4 cheques in the second week of May-2012 dated 18-05-2012 bearing cheque Nos.499197, 499198, 499199 for Rs.5 lakhs and cheque No.499200 for Rs.5,50,000/-, drawn on Canara Bank, Shanthinagar Branch, Bengaluru.
On presentation of the said cheques before the concerned Bank, they came to be dishonoured with an endorsement as "No Debits". Thereafter, the complainant got issued legal notice on 12-06-2012 to the accused by registered post. The notice addressed to his residential address was served in person, but the accused did not sent any reply nor pay the cheque amount. Hence, cause arose for the complainant to file the complaint under Sec.200 of Cr.P.C. for the offence punishable under Sec.138 of the Negotiable Instruments Act.
4. On presentation of the complaint under Sec.200 of Cr.P.C. by the complainant for the offence 4 Crl.Apl.1406/2015 punishable under Sec.138 of N.I.Act, against the accused, the trial court after having recorded the sworn statement of the complainant has taken cognizance for said offence and has issued summons to the accused by registering a criminal case in C.C.24358/2012. Subsequently on receipt of summons the accused appeared before the trial court through his counsel and has been enlarged on bail.
5. Thereafter, the trial court has recorded the plea of the accused for the offence punishable under Sec.138 of Negotiable Instruments Act. However the accused has pleaded not guilty and claimed to be tried. Hence the complainant in order to prove his case, has got examined himself as PW.1 and got marked 11 documents as Ex.P1 to Ex.P11 and closed his side. Thereafter, statement under Sec.313 Cr.P.C. of the accused has been recorded. The accused has disputed the version of PW.1. The accused has got himself examined as DW.1 and also got marked Ex.D1 to Ex.D3 and closed his side.
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6. The trial court on appreciation of the evidence on record, has convicted the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act and sentenced him to pay a compensation of Rs.11,00,000/- and sentenced to pay fine of Rs.5,000/- to be remitted to the State Exchequer.
7. The accused being aggrieved by the above said judgment of conviction and sentence, has come up in appeal, challenging the judgment of the trial court on the following among other grounds;
It is contended that the learned trial Judge has passed the judgment impugned without properly appreciating the evidence on record. It is further contended that the learned trial Judge has failed to take note of the fact that the complainant has not spelled out the correct date of advancement of loan amount and as such no consideration has been passed in respect of the cheques in question. It is further contended that the 6 Crl.Apl.1406/2015 learned trial Judge has failed to take note of the fact that the complainant has failed to place satisfactory evidence in respect of his capacity to lend the amount in question. It is further contended that the complainant has failed to state the mode of payment of the amount in question and the said fact has not been considered by the learned trial Judge. It is also his contention that no legal notice was served on the appellant and the signature found on the Postal Acknowledgement is not that of the appellant. It is also the contention of the appellant that the statement of accounts produced by the respondent, marked as Exs.P10 and 11, would indicate that the respondent has withdrawn money on various dates and as such payment of a sum of Rs.23 lakhs in a single instance is doubtful and the said fact has not been considered by the learned trial Judge. It is further contended that the learned trial Judge has failed to take into consideration the admissions given by the complainant in his cross-examination and also the evidence of the appellant as DW.1 and also that the 7 Crl.Apl.1406/2015 documents produced by the appellant marked as Ex.D1 and 2 has not been considered by the learned trial Judge. Hence, on these grounds has sought for setting aside the judgment of the trial court impugned herein and to acquit him for the offence punishable under Sec.138 of the Negotiable Instruments Act.
8. This appeal was presented before the Hon'ble City Civil & Sessions Judge, Bengaluru, it was registered as Criminal Appeal No.1406/2016 and made-over to this court for disposal according to law. After the receipt of the records this court has issued notice to the respondent and the respondent appeared through a counsel. Thereafter the LCR was secured.
9. Heard both counsel on the main appeal.
10. The points that arise for my determination are as under:
1. Whether the trial court has committed any error in appreciating the oral and documentary evidence lead by the parties?
8 Crl.Apl.1406/2015
2. Whether the interference of this court is necessary in the impugned judgment of the trial court?
3. What Order?
11. On appreciation of the lower court records i.e., the oral and documentary evidence adduced by the parties and also on appreciation of the reasons assigned by the trial court in its judgment, my findings to the above said points are as follows:
Point No.1 & 2 : In the AFFIRMATIVE;
Point No.3 : As per final order
for the following;
REASONS
12. POINT Nos.1 AND 2: Point Nos.1 and 2 are taken up together, as they could be disposed of by a common reasoning and also to avoid repetition of facts.
12(a). It is the contention of the learned counsel for the appellant that the complainant had no capacity to lend the huge sum of Rs.23 lakhs at a single instance. In 9 Crl.Apl.1406/2015 this regard, it is contended by the learned counsel for the appellant that, as per Exs.P10 and 11, the statement of accounts, produced by the complainant before the trial court that the complainant himself appears to have obtained loan in a sum of Rs.30 lakhs on 27-12-2010, which is evident at Sl.No.4 in Ex.P10. In this regard, it is contended by the learned counsel for the appellant that the complainant in his cross-examination has admitted that he had availed loan Rs.49 lakhs for construction of a house and as such there was no possibility of the complainant lending loan to the accused in a sum of Rs.23 lakhs.
12(b) The said submission of the learned counsel for the appellant appears to be acceptable. Because from the perusal of the version of PW.1, the complainant, in his cross-examination at Page No.6, unnumbered last Para, it is to be seen that the complainant has admitted that he had availed a loan of Rs.49 lakhs for the purpose of construction of a house.
10 Crl.Apl.1406/2015 Such being the case, the question of the complainant lending loan of Rs.23 lakhs to the accused, that too in the year 2011, without obtaining any document from the accused towards security, appears to be doubtful. Moreover, from the perusal of Exs.P10 and 11-Bank Statements, produced by the complainant, it is to be seen that the complainant appears to have been withdrawn money on various dates from 28-12-2010 to 18-01-2011, amounting to a sum of Rs.11 lakhs and add. Therefore, the complainant having lent a sum of Rs.23 lakhs in a single instance to the accused appears to be doubtful. Moreover, a person having availed loan for himself for construction of a house would not usually lend money out of the said loan amount to any person. Such being the case, the complainant himself having availed loan on interest, as admitted by himself, having lent a sum of Rs.23 lakhs without interest, which is the substantial amount to the accused, without obtaining any documents towards security, is certainly doubtful.
11 Crl.Apl.1406/2015 12(c) That apart, it is to be seen that the cheques in question is stated to have been issued by the accused to the complainant nearly 3 - 4 months after the alleged loan transaction. Therefore, the issuance of the alleged cheques in favour of the complainant by the accused towards discharge of the above said alleged loan appears to be doubtful.
12(d) Further more, it is to be seen that the complainant appears to have filed four cheque bounce cases against the accused in respect of four cheques pertaining to the very same transaction. In this regard, it is to be seen that as contended by the learned counsel for the appellant that a Criminal Appeal preferred by the appellant in Crl.Apl.No.1415/2015 against the judgment of conviction of the trial court in C.C.24202/2012 dated 17-10-2015, has been allowed vide judgment dated 22-05- 2017 by the learned 52nd Addl. City Civil and Sessions Judge, Bengaluru (CCH-53). In this connection, copy of the said judgment (Crl.Apl.No.1415/2015) has been 12 Crl.Apl.1406/2015 produced. In this regard, it is further submitted by the learned counsel for the appellant that the respondent has not preferred any appeal against the said judgment of the learned 52nd Addl. City Civil and Sessions Judge, Bengaluru (CCH-53).
12(e) On perusal of the above said judgment of the learned 52nd Addl. City Civil and Sessions Judge, Bengaluru, it is to be seen that the learned Judge has allowed the appeal on the ground that the complainant has failed to place satisfactory material on record for having lent a sum of Rs.23 lakhs to the accused (appellant herein). Such being the case, I do not find any grounds to disagree with the reasons assigned by the learned 52nd Addl. City Civil and Sessions Judge, Bengaluru (CCH-53), so as to arrive at a different opinion. Hence, in my opinion, the complainant has failed to place satisfactory material on record to substantiate his claim that the cheques in question were issued by the accused in connection with a legally recoverable debt and also that 13 Crl.Apl.1406/2015 the complainant had the capacity to lend the huge sum of Rs.23 lakhs in a single payment to the accused. As such, in my humble opinion, the learned trial Judge has over- looked the said facts and has failed to appreciate the materials on record in a proper perspective. Moreover, the 'D' series marked on behalf of the accused has not been considered in a proper manner by the learned trial Judge, as the 'D' Series marked as Ex.D.1 to 3, would give raise to a presumption that the cheques in question having been issued by the accused to the complainant towards legally recoverable debt is doubtful. Hence, the reasons assigned by the learned trial Judge for convicting the accused, is not convincing and as such the judgment of the learned trial Judge impugned herein needs to be set- aside. Accordingly, I hold point Nos.1 and 2 in the AFFIRMATIVE.
13. POINT NO.3: In view of my findings on Point Nos.1 and 2, I proceed to pass the following:
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ORDER
The Criminal Appeal filed by the
appellant/accused under Sec.374(3) of Cr.P.C. is hereby allowed.
The judgment of conviction and sentence of the learned XXII Addl.Chief Metropolitan Magistrate, Bengaluru, dated 21-10-2015 in C.C.24358/2012, is hereby set-aside. Consequently, the accused is acquitted for the offence punishable under Sec.138 of the Negotiable Instruments Act.
His bail bond and surety bond stands cancelled.
In the circumstances, no order as to costs.
Send back the LCR to the trial court with a copy of this judgment.
(Dictated to the Judgment Writer directly on computer, corrected, signed and then pronounced by me in the open court on this the 26th day of April, 2018).
(NANDA KUMAR.B) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.