Bangalore District Court
Sri. Venkatesh B.C vs S/O. D.V.Chandraiah on 26 March, 2015
IN THE COURT OF THE ADDL. SESSIONS JUDGE , FTC-X AT
BENGALURU.
DATED: THIS THE 26th DAY OF MARCH, 2015
P R E S E N T:-
Sri. PATIL MOHAMMADGOUSE MOHIDDIN
B.Com, LL.B (Spl.).,
PRESIDING OFFICER,
FTC-X, BENGALURU CITY.
CRIMINAL APPEAL No.419/2014
BETWEEN:-
APPELLANT/ Sri. Venkatesh B.C.
ACCUSED: S/o. D.V.Chandraiah,
Aged about 50 years,
Proprietor of S.G.Industries,
R/at. 17/4, Malur Road,
Ammerahalli, Kolara- 563101.
(By Sri. Ganesh G.G., Adv.)
Vs.
RESPONDENT/ Sri. Strategic Marketing and
COMPLAINANT Research Team, Represented by its
Partner, Sri. Anand Kumar,
S/o. K.Krishna Swamy,
Office at 253, 5th Block,
67th Cross, Rajajinagar,
Bengaluru-10.
(By Sri. D.P.Ashok, Adv.)
JUDG MENT
This is a criminal appeal preferred by the appellant/accused
against the respondent/complainant U/Sec.374 of Cr.P.C., being
aggrieved by the judgment of conviction and sentence passed by
2 Crl.A.No.419/2014
the learned XIII - ACMM., Bengaluru, in C.C.No.13021/2011,
dated 27.3.2014.
2. For the sake of convenience, the appellant and
respondent of the present case shall be referred with their original
status as referred in the Trial Court. The appellant is the accused
and respondent is the complainant before the trial court.
3. It is case of the complainant that, the complainant
filed a private complaint before trial court U/s. 200 of Cr.P.C.,
that, the accused in discharge of sale price issued a cheque
bearing No.205585 for Rs.7,14,357/- dated 9.11.2010 drawn on
Karnataka Bank Ltd., Kolar. The said cheque has been
dishonoured with an endorsement 'Drawer signature
incomplete/Illegible/Defers/read and Funds Insufficient' on
10.11.2010. Thereafter, in spite of issuance of legal notice, the
accused has not paid the cheque amount. As such the accused
has committed an offence punishable U/s. 138 of N.I.Act.
4. The trial court has taken cognizance against the
accused for the offence punishable U/s.138 of N.I.Act. Thereafter,
the accused on receipt of the summons issued appeared and got
released himself on bail.
3 Crl.A.No.419/2014
5. Thereafter, the plea recorded against him for the
offence punishable U/s 138 of N.I.Act to which the accused
pleaded not guilty and claimed to be tried.
6. In order to prove its case, the complainant got
examined as Pw.1 and got produced documents at Ex.P.1 to
Ex.P.14.
7. On completion of the complainant's evidence, the
statement of the accused as required U/Sec.313 of Cr.P.C., has
been recorded after giving an opportunity explaining the
incriminating circumstances appearing in the evidence of the
complainant.
8. No evidence is adduced on behalf of the accused.
9. By considering the oral and documentary evidence, the
learned XIII Additional Chief Metropolitan Magistrate., Bangalore
has convicted the accused for the offence punishable U/s. 138 of
N.I.Act and sentenced to pay fine of Rs.7,19,357/- and ordered to
pay Rs.7,14,357/- to the complainant by way of compensation
U/s. 357 of Cr.P.C., and balance amount of Rs.3,000/- shall be
remitted to as fine to the state and in default to undergo simple
imprisonment for six months.
4 Crl.A.No.419/2014
10. The appellant/accused being aggrieved by the
aforesaid judgment passed by the trial court has filed this appeal
on the ground that;
The trial court has committed error in drawing an adverse
inference against the accused for not permit him to leading
defence evidence. The judgment of conviction and sentence
passed by the trial court is perverse, illegal and against the facts
and law. Hence, prays to set aside the judgment of conviction
and sentence passed by the trial court and acquit the accused.
11. The said judgment is challenged by the
appellant/accused in this appeal.
12. I have secured the trial court records.
13. In spite of opportunity given, the no arguments
advanced on appellant's side.
14. Arguments of the respondent's side heard.
15. The following points that have arisen for my
consideration :-
1) Whether the appellant has made out any
grounds warranting interference with the
judgment of conviction and sentenced
5 Crl.A.No.419/2014
passed by the XIII Additional Chief
Metropolitan Magistrate., Bangalore in
C.C.No.13021/2011 dated 27.3.2014 for
the offence punishable U/s. 138 of N.I.Act?
2) What order ?
16. My findings on the aforesaid points are as under :
Point No.1 :- In the Negative
Point No.2 :- As per final order, for the following :
REASONS
17. POINT NO. 1 :- It is case of the complainant that,
the complainant is dealing with the sale of goods i.e. Phthalic
Anhydride and in pursuant to order placed by the accused, the
complainant has sold and supplied to LABSA to accused under
Invoice dated 23.10.2010 bg.No.30883 for Rs.7,14,357/- is
towards the payment of the outstanding amount due by the
accused. The accused has issued cheque bearing No.205585 for
Rs.7,14,357/- dated 9.11.2010. The said cheque has been
dishonoured with an endorsement dated 10.11.2010 stating that
"Drawers signature incomplete/Illegible/Defers/read and funds
Insufficient". In spite of issuance of notice, the accused has not
paid the cheque amount. Hence, the accused has committed an
offence punishable U/s.138 of N.I.Act.
6 Crl.A.No.419/2014
18. The complainant who examined as Pw.1 has
reiterated the contents of the complaint in his chief examination
stated that, the complainant is dealing in supply of Phthalic
Anhydride in pursuance of the order placed by the under invoice
dated 23.10.2010 bg.No.30883 for Rs.7,14,357/- the complainant
has supplied LABSA to the accused. In discharge of the said
amount, the accused has issued the cheque bearing No.205585
for Rs.7,14,357/- dated 9.11.2010 drawn on Karnataka Bank
Limited, Kolar. Accordingly, the complainant presented the said
cheque in Bank of India, Malleshwaram Branch, Bengaluru for
encashment. The said cheque has been dishonoured with an
endorsement "Drawers signature incomplete/Illegible/Defers/read
and funds insufficient" on 10.11.2010. Thereafter, they issued
legal notice dated 3.11.2010 through R.P.A.D., and UCP. In spite
of service of notice, the accused neither replied nor paid the
cheque amount. As such the accused has committed an offence
punishable U/s. 138 N.I.Act.
19. The complainant got produced Ex.P.1/Authorisation
letter to Pw.1 to give evidence, cheque at Ex.P.2, Debit Advice at
Ex.p.3, Bank Endorsement at Ex.P.4, Copy of Legal Notice at
7 Crl.A.No.419/2014
Ex.P.5, RPAD receipt at Ex.P.6, UCP receipt at Ex.P.7, RPAD Postal
Acknowledgment at Ex.P.8, Letter dated 1.10.2010 at Ex.P.9,
Letter dated 3.10.2010 at Ex.P.10, Quotation dated 5.10.2010 at
Ex.P.11, Invoice at Ex.P.12, Certified copy of Partnership Deed at
Ex.P.13 and complaint at Ex.P.14.
During the course of cross-examination Pw.1 has
specifically denied that, the accused has issued the said cheque
as security for the sale transaction. Further, Pw.1 has specifically
denied that, no materials are supplied to the accused as claimed
by the complainant. During the cross-examination of the Pw.1
nothing is elicited to show that, the said cheque at Ex.p.2 is not
issued to the complainant in discharge of the sale price as claimed
by the complainant. On going through the invoice at Ex.P.12,
letters at Ex.P.9 and Ex.P.10, it clearly evident that, the accused
deals with the complainant firm and complainant firm has
supplied LABSA to the accused worth of Rs.7,14,357/-. The said
cheque issued by the accused is also for amounting to
Rs.7,14,375/-. Though the accused claim that, he has issued the
said cheque as security for the sale transaction in between
himself and the complainant, the accused has not adduced any
evidence to that effect. Therefore, a presumption arises in favour
8 Crl.A.No.419/2014
of the complainant, the accused has issued the cheque at Ex.P.2
in discharge of the sale price of the LABSA supplied to the
accused worth of Rs.7,14,357/- under Invoice dated 23.10.2010
bg.No.30883. Further, on going through the version of Pw.1 and
Ex.P.4/Bank endorsement, it reveals that, on presentation of the
cheque at Ex.P.2 for encashment, the same has been dishonoured
as per Ex.P.4/Bank Endorsement. Further, from the version of
Pw.1 and Ex.P.5 to Ex.P.8, it clearly evident that, in spite of
issuance of legal notice as required under law, the accused has
not paid the cheque amount nor replied to the notice. To rebut
the said presumption arises in favour of the complainant, the
accused has not adduced any evidence. On going through the
cross-examination of Pw.1, it reveals that, several times the
accused has taken time for cross-examination of the Pw.1 and
Pw.1 has been recalled for several times for the cross-
examination on the application filed by the accused. in spite of
several opportunities given, the accused has not cross-examined
the Pw.1 properly in his defence. During the course of cross-
examination of Pw.1 nothing is elicited to show that, the accused
has not issued the said cheque to the complainant in discharge of
the legally recoverable amount as claimed by the complainant.
9 Crl.A.No.419/2014
Further, on going through the order sheet, it reveals that, in spite
of opportunity given to the accused, the accused has not adduced
any evidence in his defence. Therefore, the accused has failed to
rebut the presumption arises U/s. 139 and 114 of the N.I.Act.
Therefore, I have no hesitation whatsoever to come to the
conclusion that, the complainant proved beyond all reasonable
doubt that, the accused has issued cheque at Ex.P.2 in discharge
of the sale price LABSA supplied to the accused under Invoice
dated 23.10.2010 bg.No.30883 for worth of Rs.7,14,357/- and on
presentation the said cheque has been dishonoured as per Bank
Endorsement at Ex.P.4 and on issuance of the legal notice, the
accused has failed to repay the cheque amount or replied to the
notice. As such the accused has committed an offence punishable
U/s. 138 of N.I.Act.
20. I have gone through the judgment of conviction and
sentence passed by the trial court. The trial court has rightly
appreciated the evidence of Pw.1 and Ex.P.1 to Ex.P.14 and has
properly drawn a presumption in favour of the complainant, the
accused has issued the cheque at Ex.P.2 in favour of the
complainant in discharge of the sale price as per Invoice at
10 Crl.A.No.419/2014
Ex.P.12 and thereafter when the said cheque is presented, the
same has been dishonoured as per Bank Endorsement at Ex.P.4
and in spite of issuance of legal notice as per Ex.P.5, the accused
has failed to reply the notice nor paid the cheque amount. As
such the accused has committed an offence punishable U/s. 138
of N.I.Act. Therefore, the trial court has properly convicted the
accused and sentenced to pay fine of Rs.7,19,357/- and ordered
to pay Rs.7,14,357/- to the complainant as compensation.
Therefore, I am of the view that, the appellant/accused has made
out no grounds warranting interference with the judgment of
conviction and sentence passed by the XIII - A.C.M.M., Bengaluru
in C.C.No.13021/2011 dated 27.3.2014. Accordingly, I answer this
point No.1 in the Negative.
21. POINT NO.2 :- In view of my findings on the above
point, I proceed to pass the following:
ORDER
The Criminal Appeal filed by the appellant/accused U/Sec.374 of Cr.P.C., is dismissed.
The judgment of conviction and sentence passed by the learned XIII Additional Chief Metropolitan Magistrate., 11 Crl.A.No.419/2014 Bangalore in C.C.No.13021/2011 dated 27.03.2014 is hereby confirmed.
Send back the L.C.R. forthwith.
(Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this the 26th day of March, 2015.) (PATIL MOHAMMADGOUSE MOHIDDIN) PRESIDING OFFICER, F.T.C -X, BENGALURU CITY.
12 Crl.A.No.419/2014 13 Crl.A.No.419/2014Judgment pronounced in the open court Vide separate judgment O R D ER The Criminal Appeal filed by the appellant/accused U/Sec.374 of Cr.P.C., is dismissed.
The judgment of conviction and sentence passed by the learned XIII Additional Chief Metropolitan Magistrate., Bangalore in C.C.No.13021/2011 dated 27.03.2014 is hereby confirmed.
Send back the L.C.R. forthwith.
PRESIDING OFFICER, F.T.C -X, BENGALURU CITY.
14 Crl.A.No.419/2014