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Bangalore District Court

Complainant: Sunil Silvester vs Accused: Smt.Asha.M on 16 October, 2019

    IN THE COURT OF LXXIII ADDL.CITY CIVIL AND
      SESSIONS JUDGE, M.H.UNIT, BENGALURU.
                    (CCH.74)

                       PRESENT:
     Sri. Yamanappa Bammanagi, B.A, LL.B. (Spl.)
        LXXIII Addl. City Civil & Sessions Judge,
                 M.H.Unit, Bengaluru.

        Dated this the 16th day of October, 2019.

               Crl.Appeal.No.25249/2018
Appellant/
Complainant:   Sunil Silvester,
               S/o.Irudayaraj,
               aged about 35 yrs,
               R/at.No.9/A, Narayanappa Street,
               11th Cross, Oil Mill Road,
               Lingarajapuram,
               Bengaluru­560084.

               (By Sri.L.Sridhara - Adv.)

                                Vs.

Respondent/
Accused:       Smt.Asha.M., C/o.Kanthi,
               aged about 40 yrs,
               R/at.No.37/1,
               Kanakadasa Layout,
               Near Lingarajapuram,
               Bengaluru­560084.

               (Resp. - Exparte)
                               2            Crl.A.No.25249/2018


                        JUDGMENT

Being aggrieved by the judgment and order, passed by the learned LVIII ACMM, Bengaluru, in CC No.55994/2016, dated 04.12.2018, acquitting respondent for the offence punishable under Section 138 of N.I.Act, the appellant is before this court challenging the said judgment and order, u/S 372 of Cr.P.C.

2. Brief facts of the case:

The appellant/complainant and respondent/accused are well known to each other, being friends for the last several years, on the acquittance, the accused/respondent herein had approached the complainant for financial assistance to meet his family necessity, the complainant has agreed to help the accused, on demand, the complainant had advanced an hand loan of Rs.1,95,000/­, to the accused in the month of January 2016. At the time of borrowing the loan, the accused had assured that he will repaid the said hand loan within 3 months. Even after lapse of 3 months, the 3 Crl.A.No.25249/2018 accused did not repaid the said loan despite several demand.

Lastly on 30.5.2016 the complainant had demanded for the repayment of said loan, in order to repay the said hand loan on the demand made by the complainant, the accused has issued a cheque bearing No.0781858, dated 30.5.2016, for sum of Rs.1,95,000/­, drawn on State Bank of Hyderabad, HRBR Layout Branch, Bengaluru, in favour of complainant, same was presented for encashment on 12.07.2016, through his bank Indian Overseas Bank, HRBR Layout Branch, Bengaluru. The said cheque was returned with a bank endorsement dated 13.7.2016 as "Insufficient Funds", the complainant has brought the notice of the accused about the dishonour of cheque, but accused did not heed the request of the complainant, helplessly, the complainant got issued legal notice through his counsel by RPAD as well as speed post, calling upon the accused to pay the cheque amount, same was served on the accused on 2.8.2016, accused did not repaid the cheque amount even after receipt of notice.

Hence, the complainant has filed complaint u/S 200 of Cr.P.C. against the accused for the offence punishable u/S 138 of N.I. Act, before the trial court. On being satisfied with the material placed by the complainant, the trial court has recorded sworn statement of the complainant as C.W.1 and thereafter trial court has taken cognizance for the offence punishable u/S 138 of N.I. Act, issued the summons to the accused u/S 204 of Cr.P.C., in pursuance of the summons the accused appeared before the trial court through his counsel, trial court has released the accused on bail and plea was recorded, thereafter accused statement u/S 313 of Cr.P.C.

was recorded and posted for cross of P.W.1, cross of P.W.1 was taken as Nil, heard the argument and posted for judgment and trial court has passed the judgment and order acquitting the accused for the offence punishable u/S 138 of N.I. Act, holding that the complainant has not produced original documents, hence failed to prove his case. Being aggrieved by the said judgment and order, the 5 Crl.A.No.25249/2018 complainant/appellant has challenged the correctness and legality of said judgment and order, u/S 372 of Cr.P.C., on the following:­ GROUNDS I) The impugned judgment & order of the trial court is not only illegal, arbitrary, but also is in clear violation of the precedents rendered by the Hon'ble Supreme Court under provision of Negotiable Instruments Act. II) The trial court has not construed the complaint and evidence of the parties in the right perspective. III) The learned Magistrate has failed to consider the basic principle law that the appellant's sworn statement recorded by this learned Magistrate and at the time of sworn statement received the original documents in respect of the said case and after perusing the original documents only the said is registered as criminal case and issued the summons to the respondent even at the time of sworn statement even at the time of sworn statement xerox copies of the originals are with the record and without considering the said documents passed the impugned judgment is liable to be set­aside.

IV) The learned Magistrate has failed to given an opportunity to produce the original documents and to lead further chief examination of PW1 without looking 6 Crl.A.No.25249/2018 into the records straight away posted the matter for judgment without giving sufficient opportunity either side passed the impugned judgment mechanically and it is liable to be set­aside.

V) The impugned judgment does speak anything about the reasons for dismissing the case that whether sufficient opportunity was given to the appellant or not in the court below.

VI) The impugned order passed by the trial court is contrary to law laid down by the Hon'ble Supreme Court of India and various High Courts.

VII) The learned Magistrate has failed to apply its mind to the facts and circumstances of the case and has passed the impugned judgment/order without proper appreciation of the same.

With these grounds the learned counsel for the appellant prayed for allowing the appeal.

3. After filing the appeal this court has issued the notice to respondent, served on the respondent, respondent remained absent, LCR received, heard argument of the learned counsel for the appellant/complainant, since 7 Crl.A.No.25249/2018 respondent remained absent, hence no argument was addressed on behalf of the respondent.

4. In support of his argument the learned counsel for the appellant has relied on the decision reported in 2014 (1) DCR 625, Hon'ble High Court of Rajasthan, in case of Gulab Singh v/s Ashok Kumar.

5. In view of the amendment to Section 372 of Cr.P.C. a victim can preferred appeal against the judgment and order passed by the Magistrate before the Session Court. The amended provision of Section 372 of Cr.P.C. reads thus;

Section 372 of Cr.P.C. No appeal to lie unless otherwise provided - No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.

Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court.

In view of the amendment to Section 372 of Cr.P.C., the appeal preferred by the appellant is maintainable.

6. I have perused the facts and grounds made out by the appellant and material placed before the court and considered the argument of the learned counsel for the appellant. On perusal of the same, the points that would arise for my consideration are as follows:­

1. Whether the complainant/ appellant made out grounds to show that order of acquittal, recorded by the trial court, in CC No.55994/2016, dated 4.12.2018, deserves to be set aside and warrants the interference of this court?

2. What order?

7. My answer to the above points are as follows:­ Point No.1: In the Affirmative, Point No.2: As per final order, for the following:­ 9 Crl.A.No.25249/2018 REASONS

8. POINT No.1: For the sake of convenience the rank of the parties are referred as they were referred before the trial court. It is the case of the complainant before the trial court that the complainant has filed a complaint u/S 200 of Cr.P.C. against the accused alleging that the accused has committed offence punishable u/S 138 of N.I.Act as accused has issued a cheque No.078185, dated 30.5.2016, for sum of Rs.1,95,000/­, in favour of complainant, on presentation of said cheque for encashment, the cheque was returned with a bank endorsement as "Fund Insufficient", therefore, the complainant has issued notice to the accused, same was served on the accused, even after receipt of notice the accused did not repaid the cheque amount. After stipulated period, the complainant has filed complaint u/S 200 of Cr.P.C. against the accused for the offence punishable u/S 138 of N.I.Act, the trial court has recorded the sworn 10 Crl.A.No.25249/2018 statement of complainant as C.W.1, on being satisfied with the material produced by the complainant, the trial court has taken cognizance of the offence punishable u/S 138 of N.I. Act and issued summons to the accused u/S 204 of Cr.P.C. In pursuance of the summons, accused appeared before the court and released on bail, plea was recorded and statement of accused u/S 313 of Cr.P.C. was also recorded by the trial court. Heard argument on both side and trial court has passed the judgment and acquitted the accused for the offence punishable u/S 138 of N.I. Act.

9. I have perused the sworn statement, plea recorded, statement of the accused u/S 313 of Cr.P.C. recorded by the trial court and impugned judgment and order. On perusal of the same it is clear that trial court has recorded the sworn statement, on being satisfied with the documents, produced by the complainant, summons issued to the accused on 8.9.2016, since 8.9.2016 till 14.8.2018, the case was adjourned for appearance of the accused. Due to non­ 11 Crl.A.No.25249/2018 appearance of the accused, the trial court has issued NBW on 24.7.2018, against the accused, and accused was produced under warrant on 14.8.2018, thereafter released on bail, on same day accused has filed application u/S 142 (2) of N.I. Act, seeking permission of the court for cross­examination of complainant on the next date of hearing. Thereafter, the case was posted for plea on 30.8.2018. On 30.08.2018 plea was recorded, on the same day statement of the accused u/S 313 of Cr.P.C. was recorded and posted for cross of P.W.1 on 27.10.2018. Cross of P.W.1 was taken as Nil and posted for defence evidence on 17.11.2018, on 17.11.2018 defence evidence was taken as Nil, heard argument on both side on 27.11.2018, and posted for judgment. And judgment and order was passed by the trial court holding that complainant has not produced original documents and failed to prove the case, hence accused is acquitted for the offence punishable u/S 138 of N.I. Act.

10. I have perused the impugned judgment of trial court, the entire reasoning portion of judgment reads thus:

REASONS Point No.1: The complainant being the P.W.1 has filed sworn statement in affidavit. The endorsement of the Presiding Officer dated 8.9.2016 shows that the originals were placed before the court, but not marked. The P.W.1 in the chief examination has reiterated the facts of the case as ditto. Therefore I would not like to rediscuss the facts. As per the guidelines of Hon'ble Supreme Court of India issued in Indian Bank Association case, original documents need to be produced to find out the prima facie case. Therefore, cognizance for offence against the accused may be taken even on the basis of xerox documents. But, it does not mean that conviction judgment can be delivered only on xerox. Atleast complainant has to take the aid of the Section 65 of Evidence Act by producing secondary evidence. Court cannot consider xerox copy as a exhibits for conclusion. Therefore, the offence u/S 138 of N.I. Act need to be proved at the strength of documentary evidence, since it is a document - based transaction. But, when the complainant failed to give evidence as per the Indian Evidence Act, it may be said that he failed to prove offence against the accused. Hence, point No.1 is answered in the Negative.

11. On 08.09.2016, complainant present before the court for the first time for recording of sworn statement. It is 13 Crl.A.No.25249/2018 relevant to note here the order sheet of trial court which reads thus:

Case called. Complainant is present.

Sri.M.D. Advocate files memo with original documents. Perused the said documents a/w xerox copy of the documents produced a/w complaint.

Complainant files his affidavit, in lieu of his sworn statement as C.W.1. Further statement. Heard Sri.M.D. Advocate.

Perused the complaint averments and xerox copy of the documents produced a/w complaint and also its original which are produced today a/w affidavit filed in lieu of sworn statement. On careful scrutiny of the materials on record, it is clear that the complainant has complied all the ingredients of Section 138 N.I. Act and has made out a prima facie case to proceed against the accused for the offence punishable u/S 138 N.I. Act.

Hence, proceed to pass the following:­ ORDER Office to register a criminal case against the accused for the offence punishable u/S 138 N.I. Act.

Office to return all the original documents produced today by the learned counsel for the complainant with a proper endorsement, to produce the same at the time of evidence.

Issue SS to the accused by RPAD as well as through court and through complainant as prayed if required PF and RPAD are furnished, returnable by 23.2.2017.

12. On perusal of the above order, it is clear that the complainant has filed a memo with original documents and also with xerox copy of the same. After perusal of the original documents, the trial court suo moto, has returned the original documents to the complainant without application by the complainant for return of documents and relied on the 15 Crl.A.No.25249/2018 xerox copies and recorded the sworn statement of the complainant as C.W.1. On being satisfied with the material, produced by the complainant, the trial court has issued summons to accused u/S 204 of Cr.P.C.

13. Thereafter accused produced before the court on NBW, on 14.8.2018, near 2 years, after summons u/S 204 of Cr.P.C. On the same day accused has released on bail. Now it is relevant to extract the order, dated 14.08.2018, when accused was produced before the court for the first time. On that day the court has passed order on the application filed u/S 436 of Cr.P.C. Order portion in the order sheet reads thus:

ORDER Accused is present. Counsel for the accused files vakalath and bail application u/S 436 and Section 445 and Section 70 (2) of Cr.P.C. Heard, both sides. Offences alleged against the accused bailable. Considering the amount of cheque involved in 16 Crl.A.No.25249/2018 this case the accused is released on bail on execution of personal bond of Rs.50,000/­ with a cash security of Rs.200/­.

Office is directed to take bond. NBW is recalled. Issue intimation to the concerned police to return the warrant without execution. As per the Hon'ble Supreme Court cases (2014) 5 SCC 590 Indian Bank Association and others v/s Union Bank of India and others, u/S 145 (2) N.I. Act application is filed.

For plea by 30.8.2018.

14. On 30.08.2018 plea was recorded and posted for cross of P.W.1 on 30.10.2018. Without examining the complainant and without giving opportunity to the complainant to examine himself as P.W.1. So, when trial court has returned the original documents to the complainant at the time of recording the sworn statement with a direction to the complainant to produce the original documents at the time of evidence. So, when trial court did not marked the 17 Crl.A.No.25249/2018 original documents or xerox, at the time of sworn statement, as complainant has produced the original document and its copies, returned the same with a liberty to produce at the time of evidence. But, as per the order extracted above, trial court failed to provide the opportunity to the complainant to lead his evidence and get original documents marked. Instead of providing opportunity as per the order, suddenly recorded the plea. One more important fact to be note here is that, on the same day the trial court has recorded the accused statement on the basis of sworn statement affidavit, without giving opportunity to the complainant to examine himself as P.W.1 and got marked original document as trial court has given a liberty to the complainant at the time of recording the sworn statement at pre­cognizance stage and directly recorded the accused statement u/S 313 of Cr.P.C. on basis of sworn statement without treating it as examination of P.W.1, which filed by the complainant at pre­cognizance stage, even at that time also court failed to take it as 18 Crl.A.No.25249/2018 examination in chief and did not provided the opportunity to the complainant to mark the original documents.

15. So, trial court has not provided an opportunity to the complainant to produce the document and mark the same by bye­passing the stage of the case, due to non providing opportunity to examine complainant himself as P.W.1 and got marked original document, the complainant deprived of opportunity to prove initial burden to have a benefits u/S 118 and 139 of N.I. Act. Trial court has passed the technical judgment which affects the rule of natural justice and it is against the very object of the Negotiable Instrument Act. The provisions of Negotiable Instrument Act provides many beneficial provisions to the complainant. The Act provides the criminal liability punishable with imprisonment and fine or with both to the person who issued a cheque towards discharge of debt or liability, provided the beneficial provisions of Section 118 and 139 of N.I. Act. To have a shelter under the said provision the opportunity has to be 19 Crl.A.No.25249/2018 given to the complainant to prove initial burden, because commission of offence is one thing and prosecution is quite another.

16. On perusal of the impugned judgment it is found that trial court has not given opportunity to the complainant to produce the original documents. It is not the observation of the trial court that complainant has no original documents as it could be seen from the order sheet of the trial court that the complainant has produced original documents along with xerox. But, trial court has returned the original documents to the complainant at the time of taking cognizance with liberty to produce the same at the time of evidence. But, trial court did not provide the opportunity to the complainant as per the order. After summons, trial court has recorded the plea and directly posted for cross of P.W.1, after recording 313 statement without providing an opportunity to the complainant to produce the document. When original documents are returned to the complainant, under such 20 Crl.A.No.25249/2018 circumstances, if the opportunity is given to the complainant to prove his case no injustice could be caused to the other side. With the above observation I am of the opinion that without giving any findings on the merits of the case, opportunity is to be given to the complainant to produce the original document and prove his case against the accused. With this observation I am of the opinion that trial court has committed a error in non­providing opportunity to the complainant to prove his case and passed the technical judgment and order. Hence, interference of this court on the findings of trial court is necessary. With this observation I hold that the judgment and order of trial court is liable to be set aside. Hence, I answer this point in the Affirmative.

17. POINT No.2: In view of the discussion made on point No.1, I proceed to pass the following:

ORDER Acting u/S 386 of Cr.P.C. the appeal preferred by the 21 Crl.A.No.25249/2018 appellant/complainant is hereby allowed. Consequently, the judgment and order of acquittal dated 04­12­2018, passed by learned LVIII ACMM, Mayohall Unit, Bengaluru, in CC No.55994/2016, is hereby set aside.

Further trial court is hereby directed to retry the offence punishable u/S 138 of N.I. Act, by providing an opportunity to the complainant to lead his evidence, in accordance with law.

No order as to costs.

Office is directed to send LCR to the trial court with copy of the judgment.

(Dictated to the Stenographer, on computer, after computerization, corrected and pronounced by me the Open Court, this the day of 16th day of October, 2019) (YAMANAPPA BAMMANAGI) LXXIII Addl. CC & SJ, M.H. Unit, B'luru.(CCH­74) 22 Crl.A.No.25249/2018 23 Crl.A.No.25249/2018 24 Crl.A.No.25249/2018