Bangalore District Court
Dr.Shubhacharitha K vs Smt.Dr.Shobha Divakar on 14 November, 2019
Crl.Appeal No.1217/2018
1
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.K.SUBRAMANYA, B.Com., LL.M.
LXVII ADDL CITY CIVIL & SESSIONS JUDGE ,
BENGALURU.
Dated this the 14 th day of November 2019.
Crl. Appeal No.1217/2018
APPELLANT : Dr.Shubhacharitha K.
W/o.Dharmavratha,
58 years,
R/at.No.440,
Gunasheela Fertility Centre,
Vishwa Manava Double Road,
A & B Block, Kuvempunagar,
Mysore.
Also at :
Dr.Shubhacharitha,
Tapovana Enclave Apt.,
Vashista Block,
404, Industrial Suburb Area,
Opp. to Rajarajeshwari Temple,
Mysore.
(By Sri.V.N., Advocate)
.Vs.
RESPONDENT : Smt.Dr.Shobha Divakar,
D/o.Divakar, 52 years, Crl.Appeal No.1217/2018 2 R/at.No.346, 'Maruthi Nilaya', 1st Floor, 1st 'D' Cross, 6th Block, Banashankari III Stage, II Phase, Bengaluru.
Represented by SPA Holder Sri.Divakar, S/o.Rangaswamy, 89 years, R/at.No.346, 'Maruthi Nilaya', 1st Floor, 1st 'D' Cross, 6th Block, Banashankari III Stage, II Phase, Bengaluru.
(By Sri.S.K./N.K.G., Advocates) JU DG M E NT This appeal is preferred by the appellant under Section 374(3) of Cr.P.C., challenging the conviction judgment passed by the learned XII Addl. C.M.M., Bengaluru in C.C.No.27270/2015, dated:8.06.2018 as to the alleged ofence under Section 138 of N.I.Act.
2. The appellant herein was the accused and respondent herein was the complainant before the trial court. For the sake of convenience, parties would be referred to by the ranks they were assigned before the trial court.
3. Brief facts of the case are as under:
The complainant and accused are Doctors by profession and they are close friends for the past 25 years. Presently, Crl.Appeal No.1217/2018 3 the accused is working as Gynecologist at Gunasheela Clinic, Kuvempu Nagar, Mysore. On account of well acquitance with the complainant, the accused has interesting to purchase a land at Mahadevapura Main Road, Mysore along with her Doctor friend and offered the complainant to join to the project by purchasing an acre of land out of about six acres of land which the accused was intending to purchase. During the month of July 2013, when the complainant visited Mysore, the accused took her to a plot land situated at Annapoorneshwari Trust and told that she is purchasing a land and accordingly, the complainant believing the words of accused, had paid a sum of Rs.24,05,000/- as part of sale consideration to the accused on the following manner.
1. On 21.10.2013 transfer through online an amount of Rs.5,000/- to the bank account of accused bearing S.B.Account No.1717230000627 drawn on Syndicate Bank, Kuvempunagar, Mysore.
2. On 21.10.2013 transfer an amount of Rs.4,00,000/- through online to the bank account of the accused.
3. On 8.11.2013, the complainant has issued a cheque bearing Nno.429877 for Rs.15,00,000/- drawn on Karnataka Bank.
4. On 17.03.2014, the accused received an amount of Rs.5,00,000/- by way of cash from the complainant.
Crl.Appeal No.1217/2018 4 In all, the complainant had paid a sum of Rs.24,05,000/- to the accused. After receipt of the said amount, the accused has told that she would pay the said amount to the landowners and to get the same registered in her name. Subsequently, after receipt of the amount, the accused has not keep up her promise and whenever the complainant enquired the accused about the registration of land in her favour, the accused has gave false excuse on one or other pretext. Subsequently, on persistent request made by the complainant to show the documents with respect to purchase of land, the accused has evaded to give suitable reasons for the breach of promise committed by her and the complainant has came to know that the accused has not been entered into any sort of Memorandum of Understanding or an agreement of sale with the owners of the land situated adjacent to Annapoorneshwari Trust, Mahadevapura Road, Mysore. The accused has not made any payment to the land owners, which she was received from the complainant and thereby, the accused has committed breach of promise and has not disputed with respect to liability and the same has been conceded in her e-mails and legal notice issued by the accused herself. Since the beginning, the father of complainant was aware of the transaction of the complainant with the accused and he used to approach the accused on behalf of his daughter Crl.Appeal No.1217/2018 5 regarding the finalization of the sale of land in favour of complainant. At that time, the accused herself came with an offer of payment of interest at the rate of 3% per month by sending mail to the complainant, dated:13.01.2015 till realization of the amount The complainant was constrained to visit to India as she was and is working Abroad and to meet the accused. The accused herself to discharge the liability after calculating interest in her own version, has voluntarily gave a fully filled undated cheque bearing No.006017 for Rs.32,50,000/- drawn on Indian Overseas Bank, Jayalakshmipuram Branch, Mysore to the complainant and assured the complainant that she would intimate the date of presentation of the cheque to her. After issuance of cheque, the accused once again sent another e-mail to the complainant contradicting the issuance of cheque in favour of the complainant and subsequently, without any other alternative and efficacious remedy, the complainant has approached the jurisdictional Mysore police and the said police have summoned the accused on 23.06.2015 and advised her. As per the advise of the police, the accused has invited the complainant and her father to her house and in the presence of her son, she has voluntarily filled up the date column of the cheque as 23.06.2015 and handed over the said cheque to the complainant. When the Crl.Appeal No.1217/2018 6 complainant presented the said cheque for encashment through her banker Karnataka Bank Ltd., Banashankari Branch, Bengaluru, the said cheque came to be dishonoured with an endorsement "Payment stopped by the drawer" on 18.08.2015. Thereafter, the complainant got issued the legal notice, dated:9.09.2015 calling upon the accused to pay the cheque amount. Despite service of legal notice, the accused has neither replied the said notice nor paid the cheque amount. Hence, the complainant has lodged the complaint against the accused for the offence punishable under Section 138 of N.I.Act. The trial court after due process and procedure, has passed the impugned order convicting the accused for the alleged offence.
4. In the grounds, the appellant has contended that the complainant was obtained the cheque by force in the Police Station. The complainant put the accused under pressure through police and as such, the cheque was issued. The said cheque cannot be considered to be executed in the eye of law. It is not issued towards discharge of any legally enforceable debt or liability. The trial court has not appreciated these facts. The appellant has never agreed to pay interest at the rate of 3% per month on the alleged principal amount. The appellant has never sent any e- mails in this regard. All these factors are not appreciated Crl.Appeal No.1217/2018 7 by the trial court as per evidence. The conclusion arrived by the trial court holding that there is legally enforceable debt is not justified. Moreover, it is impermissible in law to charge/take huge interest of 36% per annum as it is against to the interest act as well as The Karnataka Prohibition of Charing Exorbitant Interest Act 2004 as well as under The Usurious Loans Act, 1918. Hence, the cheque itself is the outcome of fraud and force. It is tainted with illegality, unenforceable and invalid in the eye of law. It is also contended that the entire claim of the complainant/respondent is against to the public policy as contained under Section 23 of Indian Contract Act. All these factors are not considered by the trial court and the impugned order has been rendered erroneously awarding huge compensation and interest. It is also contended that the complainant/respondent is a British Citizen and knowing fully well about this and in order to convert the black money into white money, paid the amount to the appellant/accused. The respondent should have taken the permission of the competent authority before entering into any agreement to purchase an agricultural land in Karnataka. Knowing about this, inorder to take advantage of friendship, has paid the said amount of Rs.24,05,000/- and obtained the cheque forcefully. The complainant has not produced any document so as to lending of the amount Crl.Appeal No.1217/2018 8 and it is not depicted in I.T.Returns. Instead of dismissing the complaint, the trial court has passed the impugned order. Hence, sought for setting aside the impugned order by allowing this appeal
5. The respondent has put her appearance through her counsel. The lower court records were secured.
6. After hearing the arguments, the points raised for determination are as under:
1. Whether the appellant has made out grounds to intermeddle with the impugned order ?
2. What Order ?
7. My findings on the above points are as follows.
POINT No.1 - In the Negative.
POINT No.2 - As per final order, for the following :
R E A S ON S
8. POINT No.1 : On perusal of the impugned order, it is apparent that the complainant and accused are close friends and they had good relationship before the transaction and at the time of transaction, the proposed purchase of land at Mahadevapura Main Road, Mysore. It is unilaterally an admitted fact that they being the friends, Crl.Appeal No.1217/2018 9 she has received the amount of Rs.24,05,000/- with an assurance to secure the land for complainant at Mysore and the complainant believing the words of accused, has part with the amount and invested as stated by the accused and given the amount to her in various manner. After receiving the amount, the accused has failed to secure the land due to restrictions under Karnataka Land Revenue Act. It is pertinent to note that the complainant is a Foreign citizen and could not able to purchase the land in Karnataka due to prohibition under Karnataka Land Revenue Act and under The Karnataka Land Reforms Act. Therefore, the liability to repay the amount is cast on the accused and it is apparent that to discharge that liability, the accused had issued the cheque inclusive of certain amount. Therefore, the trial court has relied upon the oral as well as documentary evidence marked in "P' series such as cheque, signature of the accused, bank endorsement, copy of legal notice, postal receipts, postal acknowledgements, reply notice, copy of Whats app message, legal notice and "D" series i.e., E-mail copies and has rightly come to the conclusion that there is debt or liability, for which the cheque has been issued and drawn the presumption under Sections 118 and 139 of N.I.Act. The presumption drawn by the trial court is sustainable and maintainable under law.
Crl.Appeal No.1217/2018 10
9. The contention of the accused is that by force, the cheque has been obtained in the Police Station before Police Inspector, but that has not been evidenced through any cogent reliable, corroborative evidence of the police official or any persons, who have witnessed the handing over the cheque to the complainant or to the authorised person. Therefore, the feeble contention raised by the accused does not in any way appreciable or reliable or acceptable in nature. It is apparent that the accued herslef has agreed to to pay and inclusive of that amount, she has dawn the cheque filled the same apart from the date. Therefore, under Section 20 of N.I.Act, the drawee of the cheque is entitled to fill the instrument for the amount due, that cannot be termed as against pubic policy as enunciated under Section 23 of Indian Contract Act. Therefore, the contention that by force or fraud or coercion, the complainant obtained the cheque before police in contravention of Section 23 of Indian Contract Act is not forthcoming in this case.
10. Adverting to the oral as well as documentary evidence, it is apparent that there are notices issued by the accused to the complainant that there was receipt of Rs.24,05,000/- by assuring to secure land at Mysore and she has also assured that there was Memorandum of Crl.Appeal No.1217/2018 11 Understanding between the land owners and the accused. Therefore, the act of the accused herself is ab-initio in violation of The Karnataka Land Revenue Act and The Karnataka Land Reforms Act. The accused knowing fully well that her friend (complainant) being a Doctor could not able to secure the land in Karnataka as she is a Foreign citizen and she has received the amount as illegal consideration is itself detrimental to the defense of the accused. So, the accused has failed to establish the defense with cogent rebuttal evidence in order to depart the presumption enunciated under Sections 118 and 139 of N.I.Act.
11. Even the accused has not entered into witness box so as to defend her case and to produce her rebuttal evidence. The transaction between the land owners and other aspects of obtaining the cheque in the Police Station are remained unexplained by the accused so as to consider it as rebuttal evidence.
12. In the decision reported in 2018 STPL 9051 SC (T.P.Murugan (Dead) by L.Rs., .Vs. Bojan) , wherein Their Lordships pleased to observe as under :
" Negotiable Instruments Act, 1881, Section 118, 139, 138 - Dishonour of cheque - Presumption - Appeal against acquittal - Once a cheque has been signed and issued in favour of the Crl.Appeal No.1217/2018 12 holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability -
This presumption is rebuttable presumption one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan - Respondent has failed to produce any credible evidence to rebut the statutory presumption - Appellants have proved their case by over-whelming evidence to establish that the two cheques were issued towards the discharge of an existing liability and legally enforceable debt - The respondent having admitted that the cheques and Pronote were signed by him, the presumption under Section 139 would operate -
Respondent failed to rebut the presumption by adducing any cogent or credible evidence - Hence, his defense is rejected - Impugned order dated:27.09.2013 passed in Crl. Revision Petition liable to be set aside, and the order of conviction and fine passed by the trial court restored".
13. It is observed in para No.11 of the impugned order that, during the course of recording the accused statement under Section 313 of Cr.P.C., in her written statement, the accused has filed her written statement, wherein contending that she was never agreed in the Police Station that she would repay the amount of Rs.24,05,000/-
Crl.Appeal No.1217/2018 13 together with interest at the rate of 3% per month, since she could not purchase an agricultural land in Karnataka on account of the bar contained in under Section 79(a) and
(b) of The Karnataka Land Reforms Act and thereby, the complainant started pressuring the accused to pay the amount with exorbitant interest, for which the accused never agreed to pay interest at the rate of 3% upon the principal amount of Rs.24,05,000/- and the said fact has been admitted by the complainant in her e-mails, which are marked as Exs.P.9 and 10. Therefore, the complainant has not approached the court with clean hands. The accused in his legal notice, dated:7.7.2015 vide Ex.P.11 has specifically stated that the complainant is guilty of fraud, coercion and undue influence in obtaining the alleged cheque and there is no legal liablity as far as Rs.32,50,000/- and the said notice was duly served upon her and the accused has not received the legal notice as per Ex.P.3 to her correct address. She has denied the suggestion that the legal notice issued by the complainant was duly served upon her. Therefore, at that time, prior to presentation of the cheque in question, the accused has given instruction not to present the cheque in question for encashment, since she has given stop payment instruction to her banker. Therefore, she has denied the claim of the complainant.
Crl.Appeal No.1217/2018 14
14. It is also forthcoming that P.W.1 has also visited the land, which is shown by the accused. For the purpose of purchase, she has made all efforts in fruitful completion of the transaction, but due to some rules and regulations under The Karnataka Land Revenue Act and under The Karnataka Land Reforms Act, prohibiting the purchase of land by Foreign citizen, she could not able to secure the land nor converted land. The e-mails subject and aspects are also clear regarding the conversation and negotiations between the accused and complainant regarding purchase of land. It is also apparent that one Dadapeer was also mediated between the complainant and accused so as to secure the land being an agent, but he has not been examined in this case as to the manner of issuance of cheque in force as contended by the accused.
15. The trial court in its impugned order has relied upon the dictums placed by both the parties and the principles enunciated therein has been observed by the trial court and the principles propounded by the Hon'ble Apex Court is adopted while assigning the reasons in this appeal. The admission under Sections 17, 18 and 58 of Indian Evidence Act coupled with primary documentary evidence relied under Sections 62 to 65 of Indian Evidence Crl.Appeal No.1217/2018 15 Act is quite appreciable and reliable. Hence, the impugned order passed by the trial court is sustainable and maintainable and it needs to be confirmed. The appellant has failed to make out grounds to intermeddle with the impugned order. Hence, the appeal is devoid of merits and liable to be dismissed. Accordingly, I answer the Point No.1 in the Negative.
16. POINT No.2 : My finding on this point is as per following :
OR D E R The Crl. Appeal filed by the appellant is hereby dismissed. Consequently, the impugned judgment passed by the learned XII Addl. C.M.M., Bengaluru in C.C.No.27270/2015, dated:8.06.2018 stands confirmed.
Send back the records to the lower court along with the copy of this judgment.
(Dictated to the Judgment-writer, transcript thereof is corrected and then pronounced by me in the open court on this the 14th day of November 2019) (K.SUBRAMANYA) LXVII Addl.City Civil and Sessions Judge, BENGALURU.