Bangalore District Court
Sri Prahalad Talukdar vs S/O. Late Guru Prasad Talukdar on 31 August, 2018
IN THE COURT OF 55TH ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE (CCH-56)
: Present :
Smt. H.G.Nagarathna, B.A., LL.B.,
55th Addl. City Civil & Sessions Judge,
Bangalore
: Crl. Appeal No. 1440/2015 :
Date: The 31st day of August 2018
APPELLANT/ Sri Prahalad Talukdar,
ACCUSED : S/o. Late Guru Prasad Talukdar,
Age: 26 years, r/at No.MF-2,
Money Point, K.H.Road,
Bangalore-560 027.
(By: Sri Shridara Murthy, Advocate)
- V/s -
RESPONDENT/ Sri P.Ravindra s/o. Late B.Parameshappa,
COMPLAINANT : Age: 53 years, r/at No.5, Sri Basava Sai
Nilaya, 5th Cross, Kodichikkanahalli Road,
Bilekahalli, Bannerghatta Road,
Bangalore-560 076.
(By: Sri S.V. Giridhar, Advocate)
JUDGMENT
This is a Criminal Appeal filed by Appellant/Accused against Respondent/complainant u/sec 374(3) of the Cr.P.C challenging the Judgment and order dated 2-11-2015 passed by the learned 13th ACMM, Bangalore in C.C. No.16729/2014 convicting the Appellant/accused.
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2. For the sake of convenience the "Appellant/accused"
and "Respondent/complainant" are hereinafter referred to as "accused" and "complainant" respectively.
3. The facts leading to this Crl. Appeal, in brief, are as under:-
3(a) The appellant had borrowed loan of Rs.2,00,000/- from the complainant during 20-8-2013 and in discharge of the said loan, the accused has given a cheque bearing No.444235, drawn on Canara Bank, Hennur Main Road branch, dt.8-11-2013, for Rs.2,00,000/-. On presentation of the said cheque, it was dishonoured with endorsement "Funds insufficient" on 9-11-2013, as per Banker's memo. Thereafter, the complainant got issued a legal notice dt.21-11-2013 and the accused has given untenable reply on 5-12-2013, even after the accused has not paid the cheque amount. Hence alleging that the accused has committed the offence p/u/sec.138 of N.I. Act.
3(b) The trial court took cognizance of offence and issued process against the accused. The accused appeared before the trial court through his counsel and got released on bail. The substance of accusation was read over and explained to accused.
-3- Crl. Appeal No. 1440/2015 They pleaded not guilty and claimed to be tried. Accordingly the trial court has tried the case.
3(c) The complainant, in order to prove his case, got himself examined as PW1 and also examined PW2 and produced 14 documents such as cheque, bank endorsement, bank challen, copy of the Legal Notice, RPAD receipts, RPAD postal acknowledgment, returned RPAD cover, Reply notice, complaint, intimation from Bank, copy of cheque, certificate and information from Jet Airways.... etc. and got them marked as Exs.P.1 to 14.
The statements of accused u/sec. 313 of Cr.P.C were recorded. Then the accused have adduced the oral evidence of Accused No.2 as DW1 and also examined two more witnesses as DW2 and DW3 on their behalf and have produced the Bank statement, Issuance of cheque book, information of ticket, terms and conditions of company, receipt of golden residency, reply notice, delivery book and letter for stop payment and got it marked as Ex.D1 to Ex.D8.
3(d) The learned trial judge heard both side arguments and raised the following points for consideration:
1) Whether the complainant proves beyond all shadow of doubt that the accused has committed an offence punishable u/sec. 138 of N.I. Act?
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2) What order?
3(e) The learned trial judge has answered the point No. 1 is in the affirmative and has convicted the accused of the offence p/u/sec. 138 of N.I Act by the impugned Judgment and order dated. 2-11-2015. The learned trial judge has ordered that the accused shall pay the fine of Rs.2,80,000/-; in default of payment of said fine amount the accused shall undergo simple imprisonment for a period of 6 months; out of the said fine amount a sum of Rs.2,75,000/- shall be paid to the complainant as compensation and that the remaining amount of Rs. 5,000/-
shall go to the State.
4. The accused, being aggrieved by the Judgment and order dated. 2-11-2015, has preferred this appeal on the following amongst other grounds:
1) The trial court has ignored the facts of the case narrated by itself in the brief facts of the case in the impugned judgment. The impugned judgment is not sustainable in law or on facts of the case.
It is against the procedure available in Cr.P.C.
2) There is no liability on the part of appellant/ accused. The complainant has failed to prove the existence of debt. The trial court has wrongly
-5- Crl. Appeal No. 1440/2015 concluded that the cheque in question is issued for discharge of legally recoverable debt.
3) The trial court has failed to understand the facts of the case and it has failed to appreciate the evidence. The impugned judgment is perverse and is contrary to the law.
4) The impugned Judgment is devoid of merits and has resulted in miscarriage of justice.
Because of these above mentioned grounds, the Appellant/ accused has prayed for allowing the appeal and for setting-aside the impugned Judgment and Order.
5. In pursuance of notice issued in this appeal case, the respondent/complainant has appeared through his Advocate.
6. The lower court records are secured.
7. I have heard the arguments of learned counsel for respondent/complainant. Inspite of giving sufficient time, the learned Advocate for appellant/accused has not advanced his side argument. It is taken as NIL.
8. Now the following points will arise for my consideration and determination:
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:POINTS:
1) Whether the respondent/complainant has proved the existence of a legally enforceable debt due from appellant/accused and that the cheque in question has been issued for discharge of the same?
2) Whether the appellant/accused has made-out the good and sufficient grounds to set-aside the impugned judgment and order?
3) What order?
9. My findings on the above points are as under:
Point No.1 : In the Affirmative,
Point No.2 : In the Negative,
Point No.3 : As per final order for the following:
REASONS
Point Nos.1 to 2 :-
10. This is an appeal filed by the appellant u/sec. 374(3) of Cr.P.C against the orders passed by the trial court in 16729/2014 dt.2-11-2015 in convicting the accused for the offence u/sec.138 of N.I. Act and sentence him to pay a fine of Rs.2,80,000/- in default he shall undergo simple imprisonment for a period of 6 months and out of Rs.2,80,000/- payment of amount Rs.5,000/- shall be remitted to state cost. The grounds of appeal are hereunder that the trial court has passed the Judgment is tobe set-aside. There is no material proof by the respondent to prove
-7- Crl. Appeal No. 1440/2015 section 138 of the N.I. Act. The accused never issued any cheque in question. Further the accused has given a stop payment order to the banker. The banker's letters are at Ex.D.8. The trial court has erred and passed the conviction order against the accused which is to be set-aside. Now let us scrutiny the evidence on record whether the respondent-complainant before the trial court has proved the case u/sec. 138 of N.I Act and whether the appellant has rebutted the presumptions arises u/sec.139 of the act. PW1 in the chief-examination has stated that accused approached the complainant/respondent and received hand-loan of Rs.2,00,000/- towards his brother's marriage expenses and promise to pay within one month. In good faith the said Rs.2,00,000/- were paid to the appellant in cash and thereafter turned hostile attitude towards repayment and on 8-11-2013 issued a cheque and 8-11-2013 appellant issued a cheque for a sum of Rs.2,00,000/- drawn on Canara Bank, Hennur Main Road branch. The cheque was presented, but the said cheque was not honoured due to insufficient funds legal notice caused. Legal Proceedings initiated. In the cross-examination of this witness it is contended that the accused had borrowed loan of Rs.2,00,000/- and the respondent assured that he will going to pay loan of Rs.2,00,000/- through his father and it is his contention in the
-8- Crl. Appeal No. 1440/2015 cross-examination that the respondent had taken the cheques in question which was kept in the office drawers where appellant and respondent both were working in the same office, which was denied by the PW1 and it is also in the cross-examination that the mobilization of funds by his father source he has not known. Now coming to the evidence of DW1 is concerned. It is his contention that he knew the complainant through the complainant father and he never demanded loan and on the date of availment of the cheque he was in Bombay and he did not performed the marriage of his brother in the month of August 2013. Complainant son R.Yogesh is employee in APCO Group company. The complainant son R.Yogesh approached to the office and asked about the salary and he taken away three cheques which was kept in the drawers after beating the accused in the office. He also stated he has produced the flight tickets i.e., he flew away from Mumbai to Bangalore on 23-8-2013, which is at Ex.D3 and further he stated that he was working as a manager in APCO Group company drawing the salary of Rs.40,000/- and never borrowed a sum of Rs.2,00,000/- from the respondent and on the date of borrowing of alleged money he was in Bombay and he admitted his signature in the Ex.P.1 and cheque is also of him and hand-writing found in Ex.P.1 are pertains to him.
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11. On analyzing the evidence of PW1 it is his contention before the trial court borrowed a loan of Rs.2,00,000/- and thereafter the appellant did not repaid the loan amount issued a cheque and which was returned bounced due to insufficient funds. The contention of the respondent herein before the trial court are that the appellant had borrowed a loan of Rs.2,00,000/- towards marriage expenses of his brother and promised that he will pay the same within 1 month, but did not pay and turned hostile. Now the contention of the appellant are that he never borrowed the money he has not performed his brother marriage. On the date of alleged availment of loan he was in Bombay, no chance of availment of loan by the complainant herein respondent. There is a dispute in between complainant and the accused herein appellant and respondent and the son of complainant Mr.Yogesh had come to the office of the appellant and took away cheques in question by forcibly and also at the time of taking away the cheques the complainant's son Mr.Yogesh beated the appellant.
12. In the cross-examination of DW1, he has categorically admitted that he has signed on the cheque and also the amount was return by him and cheque pertains to him. When this being the affairs of the execution of the cheque if really the contention of the appellant before the trial court is true that the cheque in
-10- Crl. Appeal No. 1440/2015 question was taken away without the notice of DW1 and at the time of took away the cheques the complainant son beated the appellant. If really believable why the appellant did not lodge a case against Mr.Yogesh or complainant in a proper forum. He kept silent till legal cause notice in respect of the transactions in between them with regard to the availment of loan. Loan due and issuance of cheque and which was bounced due to insufficient funds. On the day of taking away the cheques the appellant was liberty to launch a case against the respondent or his son who were alleged forcibly took away the cheques. So far as on the date of availment of loan that the accused was in Bombay is no much relevance to the case on hand. The trial court has observed in detail with regard to the Jet Air Ways tickets, railway booking tickets. No further discussion in this regard. Cheque in question was dt.8-11-2013 drawn on on Canara Bank, Hennur branch.
13. On perusal of DW2 though he has stated that the complainant and his son had come to the office of the DW2 and gave a threat to appellant abused in a foul language and assaulted with helmet and taken away cheque which was kept in the drawer. In the cross-examination he stated he was not present when the money transaction were held in between appellant and respondent and also he has not given any complaint before the police against
-11- Crl. Appeal No. 1440/2015 the respondent. It is also come in the evidence he has not given the police complaint against the respondent on the date of incident in his office as because the respondent had gave a life threat. The DW2 H.R of the administration, who is running software company was not able to give complaint before the police in respect of the alleged taken away the cheque in question which was kept in the drawer of the appellant. Therefore, the evidence of DW2 is not a trustworthy evidence to believe that he speaking truth as a head of the institution it is bounden duty to take suitable actions against the persons, who are committing nuisance in the public office. But he kept silent.
14. Now coming to the evidence of DW3, the manager of the Canara Bank, Hennur in the cross-examination she has stated that Ex.P.1 cheque was presented before Bank for encashment which is the document is at Ex.P.2 and the said cheque was returned with a bank shara as not sufficient fund and further the Manager has spoke that the stop payment order reason is not correct. But however in the bank there was a stop payment order on 11-11-2013. But in the re-examination the Manager has stated that in the Bank statement of the accused on the date of presentation of the cheque the accused was not having sufficient funds in his account. Therefore, the respondent has proved his
-12- Crl. Appeal No. 1440/2015 case before the trial that cheque in question was issued towards legally recoverable debt and to discharge the liability the accused had issued a cheque of Rs.2,00,000/- which was signed by him and the same was presented and dishonored due to insufficient funds as stated by Manager of the Bank. The appellant has fail to prove the rebuttal presumption arises u/sec.139 of N.I. Act that the disputed cheque was taken away by the respondent without his knowledge which was kept in the office drawer. Hence, for these reasons the point no.1 is answered in the affirmative and the point Nos.2 is answered in the negative.
Point No.3:
15. Keeping in view the findings already given on point Nos.1 and 2 above, I proceed to pass the following:
ORDER This Crl. Appeal No.1440/2015 filed by appellants/Accused is dismissed.
2) The conviction order passed by the trial court in convicting the accused and ordered that he shall pay a fine of Rs.2,80,000/-, in default of payment of fine amount the accused shall undergo simple imprisonment for a period of 6 months and Rs.5,000/- to state cost in Rs.2,80,000/- fine amount is hereby confirmed.
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3) No order is made as to costs.
Send back the LCR forthwith by keeping a copy of this judgment.
(Dictated to the Judgment writer on computer and after corrections, pronounced by me in the Open Court on this the 31st day of August 2018.) (H.G.Nagarathna) 55th Addl. City Civil & Sessions Judge, Bangalore.