Bangalore District Court
/ Accused : 1 M/S.Somanu Batteries vs / : Mr.Sowmya Roa on 21 January, 2023
1
Crl.A. No.634/2021
KABC010209372021
IN THE COURT OF THE LXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-62)
Dated this the 21 st day of January, 2023
PRESENT :-
Sri R.RAVI, B.Sc., LL.B.,
LXI Addl. City Civil & Sessions Judge,
Bangalore, (CCH-62)
Criminal Appeal No.634 /2021
Appellant / Accused : 1 M/s.Somanu Batteries
Rep. by Mr.Venugopal
Office at No.933, Uttarahalli
Kengeri Road
Rajarajeshwarinagar
Bengaluru-560 098.
2 Mr.Venugopal
M/s.Somanu Batteries
Office at No.933, Uttarahalli
Kengeri Road
Rajarajeshwarinagar
Bengaluru-560 098.
(By Sri.S.B., Advocate)
V/s.
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Crl.A. No.634/2021
Respondent / : Mr.Sowmya Roa
Complainant C/o.Prashanth Rao
Aged about 40 years
R/a.No.25/1, 4th Main
M.S.Ramaiah City
JP Nagar
Benglauru.
(By Sri.H.S.S., Advocate)
JUDGMENT
This is an Appeal one filed by the appellants under section 374(3) of Cr.P.C., against the judgment dated 30.07.2021 one passed by the learned SCCH-8 & XII Addl. Chief Metropolitan Magistrate, Bangalore C.C. No.517/2019 wherein the learned Magistrate has convicted the accused for an offence punishable under Section 138 of N.I. Act.
2. The case of the appellants is that complainant company has not authorized the person who has complete knowledge of the transaction and the trial court has come to the wrong conclusion that the evidence lead by PW-1 the GPA holder of the appellants/accused is sufficient even after noticing in the cross-examination that the GPA holder is not aware of the facts of the complaint and there is no any transaction that has taken place between the appellants and the respondent with respect to the disputed cheque and the complainant does not know the date of issuing of cheque, 3 Crl.A. No.634/2021 date of payment of loan to the appellants and M/s.Sri Krishna N Corporation is not at all a party to the trail court and there is no any liability on the part of the appellants to repay the amount to the respondent & the respondent had no financial capacity to lend such huge amount and respondent/complaint has not at all produced any documents before the Trail Court to show the financial capacity to lend the money & the alleged disputed cheque was issued to one Nagesh Shasthri in the year 2017 and the respondent/complainant has misused the same and got it fill & filed the false case against them as such the trial court has failed to appreciate the above said facts and there is no truth and no merit in the allegations made in the complaint.
3. After filing of the above appeal the notice was issued to the respondent and the respondent appeared through his counsel and thereafter the matter was posted for arguments.
4. And I have heard the arguments of both sides and perused the entire materials placed on record and the points that would arise for my consideration are as below;
1. Whether the appellants proves that there was no any existing liability between them & the respondent as on the date of issue of cheque in question
2. Whether the appellants have rebutted the 4 Crl.A. No.634/2021 presumption drawn under Section 139 of N.I. Act?
3. Whether the judgment passed by the trial court is erroneous and calls for interference by this court?
4. What Order?
5. And my answers to the points are as below;
Point No.1 to 3 : In the negative Point No.4 : As per the final order for the following:
R E A S ON S
6. Point No.1 to 3:- Since these points are inter- related then in order to avoid repetition of facts the said points are taken up together for discussion.
7. On perusal of the materials it is found that the respondent/complainant has filed a complaint before the trial court alleging that at the request of the accused the complainant & her husband had lent a sum of Rs.20 Lakhs for improvement of his business and to meet his family necessities and the accused proposed to repay the same within a period of two years and even after several requests made by the complainant & her husband, the appellant had not bothered to repay the same as promised and when the respondent/complainant & her husband demanded for 5 Crl.A. No.634/2021 repayment the accused had a cheque for Rs.10 Lakhs drawn on Bank of India and when the complainant presented the said cheque with her banker for collection, the same returned dishonoured with an endorsement 'Payment Stopped by Drawer' and the respondent/complainant informed the same to the accused/appellant and got issued legal notice dt.19.12.2018 calling upon him to repay the cheque amount and though the said notice was duly served on the accused still the accused has not at all paid the cheque amount and hence the respondent/complainant got filed above C.C. No.517/2019 before the said Court for the offence punishable under Section 138 of N.I. Act.
8. In order to prove the above facts the husband of the respondent/complainant got himself examined as PW-1 & got marked documents at Ex.P.1 to Ex.P.14, wherein it clearly corroborated the above facts that the complainant & her husband had lent a sum of Rs.20 Lakhs to the accused for improvement of his business and to meet his family necessities and the accused proposed to repay the same within a period of two years and even after several requests made by the complainant & the appellant had not bothered to repay the same as promised and when respondent/complainant & her husband demanded for repayment the accused had had issued a cheque for Rs.10 Lakhs drawn on Bank of India and when the complainant 6 Crl.A. No.634/2021 presented the said cheque with her banker for collection the same returned dishonoured with an endorsement 'Payment Stopped by Drawer' and the respondent/complainant informed the same to the accused/appellant and also got issued legal notice dt.19.12.2018 calling upon him to repay the cheque amount and though the said notice was duly served on the accused still the accused has not at all paid the cheque amount and got filed the above cheque bounce case against the appellant/accused.
9. And since the accused has not at all denied the issuance of the cheque in question & so also the signature on it and since the accused has neither taken any probable defence nor proved it by any cogent rebuttal evidence then the trial Court has convicted the accused/appellant for the offence punishable under Section 138 of NI Act and ordered him to pay fine of Rs.11,05,000/- & in default sentenced to under go S.I. for six months.
10. And though the appellant has allegedly contending that there is no any transaction in between the him and the respondent/complainant and the alleged cheque has been misused by the respondent/complainant is concerned, the same do not hold any water as the appellant/accused at para No.16 of the appeal memorandum itself has clearly stated that 'Admittedly the statement of complainant/respondent 7 Crl.A. No.634/2021 show only Rs.10 Lakhs which is credited to different accounts i.e., one belonging to accused/appellant and another belonging to M/s.Sri Krishna N Corporation' and when that is so as per Section 58 of the Indian Evidence Act the above admitted facts need not be further proved by the complainant/respondent.
11. Even though the appellant/accused is allegedly contending that he is no where concerned to the said M/s.Sri Krishna N Corporation is concerned, the same do not hold any water as first of all during the recording of the plea itself the appellant has not at all stated his alleged defence and when that is so in a ruling of AIR 2014 SC 2528 it has been clearly held that 'Accused cannot simply say I am innocent or I plead not guilty'.
12. And even otherwise since the appellant/accused/DW-1 himself at page No.5 of his cross- examination has clearly admitted that 'The document of Ex.P.13 pertains to Somaanu Batteries and the same has been uploaded from the website of the said Somaanu Batteries and so also the document of Ex.P.14 pertains to Sri Krishan N Corporation and the same is also uploaded from the website of the said Somaanu Batteries and it is true to suggest that the transactions of said Sri Krishna N Corporation & Somaanu Batteries 8 Crl.A. No.634/2021 are one and the same' & further admitted at page No.6 that 'As per Ex.P.5 a sum of Rs.5 Lakhs through cheque bearing No.574697 has been credited to the said Sri Krishna N Corporation by the complainant on 02.05.2017 & so also sum of Rs.5 Lakhs through cheque bearing No.574696 has been credited to the Somaanu Batteries by the complainant on 04.05.2017 ' & since the appellant/accused during the recording of the plea and so also during the recording of the statement under Section 313 of Cr.P.C., has admitted the issuance of the cheque in question and also the signature on it '& since the rulings of AIR 2018 SC 3601 & (2021) 5 SCC 283 it has been further held that 'Neither issuance of cheque by the accused nor his signature there on is disputed by the accused then presumption exists of a legally enforceable debt or liability under Section 139 of N.I. Act ' then it has to be held that the appellant/accused has issued the cheque in question in favour of the respondent/complainant for discharge of the legally enforceable debt or liability as envisaged under section 139 of N.I. Act.
13. And though the appellant/accused has further contended that the respondent/complainant has not at all produced any documents to show his financial capacity to lend the alleged cheque amount of Ex.P.1 is concerned, the same once again do not hold any water as admittedly the 9 Crl.A. No.634/2021 appellant/accused has not at all set up his alleged defense while giving his reply notice and when that is so in a recent ruling of Tedehi Singh V/s. Narayanadas Mahanth 2022 (2) KLJ 214 the Hon'ble Supreme Court of India has clearly held that 'It cannot be expected by a complainant to initially lead evidence to show that he had financial capacity unless such case was set up by the accused in the reply notice'.
14. And even though the appellant/accused has further contended that he had given the alleged cheque to one Auditor by name Nagesh Shastry and the same has been got misused by the complainant/respondent is concerned, the same once again do not hold any water as contrary to the above fact the appellant/accused/DW-1 at page No.5 of his cross-examination has clearly admitted that 'He has neither given any notice to the said Nagesh Shastry to return his cheques nor even given any police complaint against the said Nagesh Shastry' & further admitted at page No.6 of his cross-examination that 'He has no documents to show that during the year 2017 he had sought a loan of Rs.5 Lakhs from the said Nagesh Shastry' & further admitted at page No.6 of his cross-examination that 'He has not at all produced any documents to show that he has obtained Rs.5 Lakhs from the said Nagesh Shastry & so also not at all produced any documents for having repaid the 10 Crl.A. No.634/2021 same', which is rather fatal to the case of the appellant/accused as in a ruling of AIR 2019 SC 1876 the Hon'ble Supreme Court of India has further held that 'The accused has to prove the issuance of the cheques in favour of his friends and its misuse by the complainant and also to show reasonable probability of existence of transaction with his friend by cogent evidence'.
15. And more over since in another ruling of 2021 (1) KLR 378 (SC) the Hon'ble Supreme Court of India has further held that 'Presumption under Section 139 of N.I. Act - A presumption is raised that the holder of the cheque received the cheque for the discharge in whole or in part or any debt or other liability - To rebut this presumption facts must be adduced by the accused which are in a preponderance of probability and then must be proved' and since as per the above dictums the appellant/accused has not at all raised any probable defence and proved the same with cogent material evidence then it has to be held in unequivocal terms that the appellant has not at all rebutted the presumption drawn under Section 139 of N.I. Act & further failed to prove that there was no existing liability as on the date of issuance of cheque between him and the respondent.
11Crl.A. No.634/2021
16. And though the appellant/accused has further taken up a plea in this appeal that the alleged cheque has been got filled & misused by the complainant/respondent, the same once again do not hold any water as in a recent ruling of AIR 2019 SC 2446 the Hon'ble Apex Court of India has clearly held that 'The complainant can fill up amount or particulars in a blank cheque ' & even in another ruling of ILR 2018 KAR page 4775 our Hon'ble High Court of Karnataka has clearly held that "A undated cheque can be treated as a bill of exchange and date on which cheque was drawn is to be reckoned and issue of blank cheque will authorize a person to fill-up that document under Section 20 of the N.I. Act. The holder in due course can fill up the cheque and present the same for encashment" .
17. And though the appellant/accused has further contended that the GPA Holder of the respondent had no knowledge of the alleged transaction is concerned, the same once again do not hold any water as the said GPA holder of the respondent is none other than the husband of the respondent/complainant and in his evidence he has clearly deposed that he too knows the accused and as such he & the respondent had given Rs.20 Lakhs of loan to the appellant/accused & in that connection he too has filed a separate cheque bounce case against the 12 Crl.A. No.634/2021 present/appellant/accused for recovery of remaining Rs.10 Lakhs & since at page No.4 of the cross-examination of the PW-1 the appellant/accused himself has clearly suggested and admitted the filing of the said criminal case by the PW-1 then the above contention of the appellant/accused do not hold any water in the eye of law.
18. And lastly though the appellant has relied upon the judgment of Criminal Appeal No.767/2022 dated 09.05.2022 and the ruling of SCC (2003) 1 SCC, the same are of no help to his case as the facts and circumstances of the present case and that of the above judgment and ruling are quite together different.
19. So in view of the above discussion made above, I am of the opinion that since the appellants have failed to prove that there was no any existing liability in between them & the respondent as on the date of issue of cheque in question and further failed to rebut the presumption drawn & one attached to the above cheque in question as per Section 139 of NI Act and since the respondent by leading the oral evidence of her GPA Holder at PW-1 & further producing the documentary evidence at Ex.P.1 to Ex.P.14 has clearly proved that she had the financial capacity to lend the cheque amounts of Rs.10 Lakhs and accordingly the same was paid to the accused and to discharge the same the 13 Crl.A. No.634/2021 accused has issued the cheque in question for the above amount and on presentation of the same the said cheque the same came to be dishonoured as 'Payment stopped by Drawer' and since nothing worthwhile has been elicited in the cross-examination of the the said PW-1 to rebut his oral & documentary evidence and since the appellant has neither produced any cogent material evidence with regard to his probable defense nor made out any cogent grounds to set aside the judgment of the trial court then it has to be held that the judgment and conviction order one passed by the trial court against the appellant/accused that he has committed the offence punishable under Section 138 of NI Act is not at all erroneous & thus does not call for my interference and accordingly I have answered the said Point No.1 to 3 in negative.
20. Point No.4:- In view of the discussion made on above point No.1 to 3, I proceed to pass the following:-
ORDER The appeal preferred by the appellant/accused under Sec.374(3) of Cr.P.C is hereby dismissed.
AND
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Crl.A. No.634/2021
Consequently, the judgment
and conviction order passed by the
trial Court in C.C. No.517/2019
dated 30.07.2021 under the appeal
is hereby confirmed.
Send back the trial court
record with the copy of this
judgment to the Court below
forthwith.
(Dictated to the stenographer on the computer, corrected and then pronounced by me in the open Court on this the 21st day of January, 2023).
(R.RAVI) LXI Addl. City Civil & Sessions Judge, Bangalore City.
R Digitally signed
by R RAVI
Date:
RAVI 2023.01.23
17:47:08 +0530
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Crl.A. No.634/2021
Judgment pronounced in the Open
Court (vide separate order)
O R DE R
The appeal preferred by the
appellant/accused under Sec.374(3)
of Cr.P.C is hereby dismissed.
AND
Consequently, the judgment and
conviction order passed by the trial
Court in C.C. No.517/2019 dated
16
Crl.A. No.634/2021
30.07.2021 under the appeal is
hereby confirmed.
Send back the trial court record
with the copy of this judgment to the
Court below forthwith.
LXI Addl. City Civil & Sessions Judge,
Bengaluru City.
17
Crl.A. No.634/2021
as contrary to the above facts the said complainant/PW-1 at page No.4 of his cross-examination has clearly further that 'During the month of November 2012 he had paid two cheques for an amount of Rs.22 Lakhs to the accused' and further admitted at page No.2 of his cross -examination has clearly admitted that 'during the month of November 2011 he and the accused have entered into a contract for purchase of the house of accused for a sum of Rs.73 Lakhs & after one month registered sale deed has taken place'.
9. And since the above material admissions of complainant/PW-1 clearly shows that the appellant/accused has sold his house property for a sum of Rs.73 lakhs & since the complainant/respondent has not at all placed any cogent materials to prove that the appellant/accused had any necessity to borrow the alleged hand loan of Rs.20,000/- from the complainant and since it is the specific defense of the appellant that the cheque in question was issued for the security of the plastering work & since the complainant/PW-1 at page No.4 of his cross-examination has clearly admitted that 'it is true to suggest that at the time of the said agreement plastering work was not completed behind the back of the said house' then it has to be held in unequivocal 18 Crl.A. No.634/2021 terms that the cheque in question was issued for the security of the above said plastering work.
10. And even otherwise since contrary to his oral & documentary evidence, the complainant/respondent/PW-1 at page No.3 of his cross-examination has clearly admitted that 'he has not at all given any amount as a loan' & further admitted at page No.4 of his cross-examination has clearly admitted that he is an income tax assessee, but he has not at all shown the amount of the cheque in question i.e., Rs.20,000/- in his income tax returns' then an adverse inference has to be drawn against the complainant that there was no any existing liability against the accused as on the date of issue of the alleged cheque in question. On this point in a ruling of 2016 (1) DCR 147 one relied on by the appellant it has been clearly held that 'NI Act - 138 & 139 -
Income tax return - if alleged loan has not shown in the income tax return an adverse inference could be drawn against the complainant'.
11. On the other hand though the appellant/accused has not at all led his defence evidence, the same is not at all fatal to his case as the appellant/accused has successfully raised a probable defense and elicited the same in the cross- examination of the complainant/PW-1 & when that is so as 19 Crl.A. No.634/2021 per Section 58 of the Indian Evidence Act the admitted facts need not be further proved by the appellant.
12. So in view of the discussion made above I am of the opinion that since the above material admissions of the complainant/PW-1 i.e., 'the accused has sold his house for a sum of Rs.73 Lakhs and the accused has not at all taken any loan' rather rebutted the presumption one attached to Section 138 of the N.I. Act and since the complainant has not at all proved that the cheque in question was issued towards the any existing liability and since in a ruling of 2008 (3) KCCR 1569 one relied on by the appellant out Hon'ble High Court of Karnataka has clearly held that 'NI Act - Section 138 - Cheque given as a collateral security - accused placing materials to substantiate the plea - burden on the complaint to prove that the cheque was issued towards the amount and not as a collateral security - complainant not proving it - plea of the accused shall be accepted' then it has to be held in unequivocal terms that there was no any existing liability on the accused as on the date of issue of the cheque in question in favour of the complainant & moreover since in another ruling of 2016 (1) TCR 507 one relied on by the appellant it has been clearly held that 'Since the complainant had failed to prove that cheque in question had been issued in discharge of legally enforceable liability, the order of acquittal does 20 Crl.A. No.634/2021 not suffer from any error or infirmity' then it has to be once again held the judgment passed by the trial Court in convicting the appellant is erroneous and thus call for my interference and accordingly, I have answered the above point No.1 to 3 in the affirmative.