Bangalore District Court
Yogesh vs Rudramma on 9 November, 2015
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY.
(CCH-67)
DATED THIS THE 9th DAY OF November 2015.
PRESENT
SRI.VIJAYAN.A., B.A.(LAW), LL.M.
LXVI Addl.City Civil & Sessions Judge
Crl.A.No.1164/2014
APPELLANT Yogesh,
C/o Vasudev,
no.39, 1st Floor,
Mullur Road,
Karmalaram Post,
Sarjapura Main Road,
Near Kodati Gate,
Bangalore.560 035.
(Rept. By Sri.Gavisiddappa, Adv.)
VS.
RESPONDENT Rudramma,
w/o G.Shivananjappa,
aged about 61 years,
No.298, Sivakrupa,
13th Cross, Hanumaiah
3rd Street, Vinayakanagar,
Annasandrapalya Extn.
HAL Post, Bangalore.560 017.
(Rept. By Sri.M.C.V Adv.)
2 Crl.A.No.1164/2014
JUDGMENT
Appellant has preferred this appeal under Sec.374(3) of Cr.P.C. being aggrieved by order of conviction passed in CC.No.5528/2011 dated 22.9.2014 by the learned 15th ACMM, Bengaluru.
2. Brief facts of the appellant's case are that:-
The complainant has filed the complaint against the accused/appellant stating that the accused approached for financial assistance of Rs.2 lakh during 2nd week of October 2009 and the same was lent to the accused. In order to discharge the said liability accused had issued cheque for Rs.2,00,000/- on 2.12.2010 drawn on ING Vysya Bank Ltd., KG Road Branch, FKCCKI Building, Bangalore. When the cheque was presented for encashment same was returned unpaid for the reason "Account closed". Accused got issued legal notice inspite and despite of 3 Crl.A.No.1164/2014 service of the notice there was no compliance , hence, the complaint.
3. The learned magistrate was pleased to take cognizance and sworn statement of complainant was recorded and issued summons to the accused. Thereafter, the complainant has examined himself as P.W.1 and got marked Ex.P.1 to P.15 and closed his side of evidence. The statement of accused under Sec. 313 of Cr.P.C. was recorded and accused got himself examined as D.W.1, but no documents were marked on his behalf. The trial court after hearing the arguments on both sides passed the impugned judgment dated 22.9.2014 convicting the accused / appellant for the offence punishable under Sec.138 of N.I. Act and sentenced him to pay a fine of Rs.2,10,000/- and in default he shall undergo S.I. for a period of six months.
4 Crl.A.No.1164/2014
4. Aggrieved by order dated: 22.9.2014 in CC.No.5528/2011 by 15th ACMM, the appellant herein has approached this court for the following among other grounds:-
a) The order of conviction and sentence passed by the Trial Court is perverse and illegal and oppose to the evidence on record.
b) Sec.255(3) of Cr.P.C. does not empower the Magistrate to pass a judgment of conviction.
c) Hon'ble trial court has failed to take into consideration the fact that the cheque was issued by he appellant in the year 2007 and the said cheque was not towards the discharge of any debs but it was a blank signed security cheque issued in place of borrowing of Rs.50,000/- the complainant has misused the said blank cheque.
d)The complainants have purposefully evaded the service of notice even though he appellant is 5 Crl.A.No.1164/2014 residing in the address cited in cause title, trial court has failed to look in to the same.
e) The complainant failed to produce any documents before the court to show that she had sources to lend a sum of Rs.2,00,000/- to the appellant.
f) The documents produced by the complainant at the time of cross-examination is against to each other and the entire total evidence is contrary and the benefit of doubt is in favour of the appellant.
g) The complainant should prove his case there is legally recoverable debt or liability he prosecution cannot depend on the weakness of he defence to prove its case. When the initial burden is not discharged by the complainant no other consideration arises, complainant should failed.
h) The order passed by rial court is perverse, illegal, and contrary to the documentary evidence on record completely ignoring vital admission and 6 Crl.A.No.1164/2014 inconsistent plea of the complainant and believing he oral evidence of the complainant which is self contradictory and contrary to the documentary evidence on record produced by the complainant himself, hence, calls for interference at the hands of this Hon'ble Court.
Hence, learned advocate for appellant prayed this court to set aside the judgment of conviction and sentence passed in C.C. No.5528/2011 dated 22.9.2014 by the learned XV ACMM, Bengaluru and acquit the appellant in the interest of justice and equity. Along with the appeal, appellant has also filed application U/s.389(1) of Cr.P.C., to stay the judgment dated 22.9.2014 in C.C. No.5528/2011 passed by the learned XV ACMM, Bengaluru and to suspend the execution of sentence for a period of three months. This court vide order dt.23.10.2014 stayed the operation of judgment and sentence for a period three months and directed the appellant to 7 Crl.A.No.1164/2014 deposit 10% of the fine amount before the trial court within 30 days from the date of said order and also directed the appellant to appear before the trial court and to execute personal bond for Rs.50,000/- with likesum one surety undertaking to appear before the said court and to suffer sentence in case of his failure in this appeal and issued notice to respondent and call for lower court records. Thereafter advocate for appellant filed Memo of compliance of the order. On that day, learned counsel for respondent present and filed vakalath. In the meanwhile, this court received the lower court record.
5. Heard.
6. On the basis of case made out, following points arise for my determination:
1) Whether the impugned order is illegal arbitrary and requires interference by this Court ?
2) What Order?8 Crl.A.No.1164/2014
7. My findings to the above points are:
1) In Negative
2) As per final Order, for the following:
REASONS
8. POINT No.1: The complainant has filed case against the accused for the offence punishable under Sec.138 of NI Act. The Trial Court after complying all procedural formalities posted this case for trial and during the course of trial complainant herself examined as P.W.1 and got marked Ex.P.1 to P.15. On the other hand accused examined himself as DW.1 but not produced any documents in his defence. Trial court after appreciating material evidence on record convicted accused for the offence punishable under Sec.138 of NI Act and sentenced him to pay Rs.2,10,000/- as fine and if fine is recovered a sum of Rs.2,05,000/- shall be paid to complainant as compensation and remaining amount 9 Crl.A.No.1164/2014 of Rs.5000/- shall go to state, in default accused shall undergo simple imprisonment for a period of six months. Being aggrieved by order of conviction and sentence passed by learned Trial Judge accused/appellant has preferred this appeal.
9. On going through lower court records P.W.1 has filed affidavit in lieu of examination in chief and got marked cheque in Ex.P.1 and identified signature of accused and affidavit in Ex.P.2, endorsement in Ex.P.3, demand notice in Ex.P.4, postal receipt in Ex.P.5 , UCP receipt in Ex.P.6, postal cover in Ex.P.7 and envelope in Ex.P.7(a). In his cross examination P.W.1 deposed that she has studied up to sixth standard and she is doing tailoring work and she is also doing other things and getting monthly income of Rs.15,000/- to Rs.20,000/- for monthly family expenses she is spending Rs.15 to 20 thousand. Accused came to know through one Mansingh, Mansingh accompanied accused to her house in the 10 Crl.A.No.1164/2014 year 2008 , accused borrowed loan from her in the year 2009. Accused demanded Rs.3,00,000/- continuously for a month but she paid 2 lakhs in the month of September 2009 and she failed to recount exact date of payment and she paid amount in the form of cash. Rs.2,00,000/- is lease amount paid by lessee which she had given to accused , accused agreed to pay interest of 5% on the amount borrowed and also agreed to repay entire amount within three months, but he failed to do so. Though she had demanded orally with accused he failed to repay the amount but he issued a cheque in the month of December 2009 she fail to recount the exact date of payment of cheque. Since accused has given cheque which is undated she did not presented for encashment. At the time of issuance of notice she has instructed well about this case with her advocate , based on her instructions advocate has issued notice to the accused. Thereafter she filed 11 Crl.A.No.1164/2014 complaint before the court. She denied that in the year 2007 accused worked as distributor of movies in Varalakshmi enterprises at Gandhinagar. Further she deposed that she is income tax assessee she failed to recount her income in the year 2009. Accused had given cheque to her in the house at the time her son was present. She clearly admits that except signature in Kannada in Ex.P.1 and remaining writings are in English. She failed to recount about the difference of ink in Ex.P.1. She denied that when accused issued Ex.P.1 for security by misusing that she has foisted this false case against the accused. She demanded amount from accused in the year 2010 and she knew financial capacity of the accused and she do not know what business he is doing now, she do not have any other document except cheque for payment of loan of Rupees 2,00,000/- to accused. She had given loan to accused in good faith. She denied lengthy suggestions put by learned counsel 12 Crl.A.No.1164/2014 for the accused, she denied at the time of cross examination several suggestions are made and denied by witnesses which is having no probative force. Though lengthy cross examination was made by learned counsel for the accused he failed to demolish the case of complainant. Under these circumstances there is crystal clear evidence to show that accused has committed an offence punishable under Sec.138 of NI Act. The trial court rightly convicted the accused for offence committed under Sec.138 of NI Act and sentenced in accordance with law. Under these circumstances, this court find no reasonable grounds to interfere in to the judgment and sentence passed by learned Trial Judge. Accordingly, this court hold Point No.1 in the Negative.
10. POINT No:2 In view of my finding to the point No.1 and for reasons discussed above, I proceed to pass following 13 Crl.A.No.1164/2014 ORDER The Criminal Appeal filed by the appellant is hereby Dismissed.
Order of Judgment of conviction and sentence passed by 15th ACMM, Bengaluru in C.C. No.5528/2011 dated 22/09/2014 is here by confirmed.
Send LCR along with the copy of this order forthwith to the trial court.
(Dictated to the Stenographer on Computer, corrected by me and pronounced by me in the open court on this 9th day of November 2015) (A.VIJAYAN), LXVI Addl.CC & SJ, Bangalore.
9.11.2015 For Judgment Order passed and pronounced in open court with following Operative portion:
ORDER The Criminal Appeal filed by the appellant is hereby Dismissed.
Order of Judgment of conviction and sentence passed by 15th ACMM, Bengaluru in C.C. No.5528/2011 dated 22/09/2014 is here by confirmed.14 Crl.A.No.1164/2014
Send LCR along with the copy of this order forthwith to the trial court.
LXVI Addl.CC & SJ, Bangalore.