Bangalore District Court
Giridhar Srinivas vs P.V.Seshadrinathan on 4 January, 2016
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY.
(CCH-67)
DATED THIS THE 4th DAY OF January 2016.
PRESENT
SRI.VIJAYAN.A., B.A.(LAW), LL.M.
LXVI Addl.City Civil & Sessions Judge
Crl.A.No.437/2015
APPELLANT Giridhar Srinivas,
s/o late Srinivas,
Aged 56 years,
No.50, Church Street,
Bangalore.560 001.
(Rept. By Sri.Ramprasad.S.N., Adv.)
VS.
RESPONDENT P.V.Seshadrinathan,
S/o P.V.Vydyanath,
Aged about 66 years,
R/at A-1201, 'Amoda Valmark'
Doddakammanahalli (PO),
Gottigere, BAngaldore.83.
(Rept. By Sri.MSM, Adv.)
JUDGMENT
Appellant has preferred this appeal under Sec.374 of Cr.P.C. being aggrieved by order of conviction passed in 2 Crl.A.No.437/2015 CC.No.24453/2012 dated 26.2.2015 by the learned XXII ACMM, Bengaluru.
2. Brief facts of the appellant's case are that:-
The complainant/respondent and accused are known persons through some broker and appellant/accused. Accused being developer had borrowed loan from complainant for temple view project and had issued a cheque for a sum of Rs.7,50,000/-. The said cheque when presented by complainant for realization, same returned with an endorsement account closed. Inspite of issuance of legal notice the appellant/accused failed to repay the cheque amount. 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 herself as P.W.1 and got marked Ex.P.1 to P.7 and closed his side of evidence. The statement of accused under Sec. 313 of Cr.P.C. was 3 Crl.A.No.437/2015 recorded and accused examined himself as DW1 and no documents are marked on his behalf. The trial court after hearing the arguments on both sides passed the impugned judgment dated 26.2.2015 convicting the accused/appellant for the offence punishable under Sec.138 of N.I. Act and sentenced him to pay a fine of Rs.7,55,000/- and in default he shall undergo S.I. for a period of two years.
4. Aggrieved by order of conviction and sentence the appellant herein has approached this court for the following among other grounds:-
a) The impugned judgment is erroneous in law.
b) There is no legally recoverable debt between the complainant and the accused and there are no monetary transactions between the complainant.
c) the learned CMM has not appreciation of evidence of his defense evidence and after not considering the rival contentions the amount has been paid to the Appellant the way back in the year 2007 and e3arlier to that the 4 Crl.A.No.437/2015 complainant was in Dubai but there is income tax returns nor bank balance as on the date of the lending of the amount he has not produced any documents before the trial court, the trial court has not considered the cross examination made by the accused/appellant properly while passing the judgment.
d) The Court below erred in convicting the accused/appellant solely on the ground that the complainant was proved when he examined whether you are an income tax assessee or not he has admitted in his cross examination but no documents were produced, at one stretch nobody will lend so much of liquid cash for a sum of Rs.7,50,000/- as mentioned in his complaint. The trial court has rejected the application filed under Sec.311 of the Cr.P.C. for recalling of the complainant/respondent for cross examination of the financial status of the complainant but the trial court has rejected and the appellant has preferred a revision also but the same has been rejected on 5 Crl.A.No.437/2015 26.2.2015 when the same CC:24453/2012 was posted for judgment on the same day it was dismissed.
e) There are no monetary transaction between the complainant/respondent and the accused/appellant, though the accused has come out with a defense that the cheque in question have taken by the complainant in the year of 2007 the same is barred by limitation the court below has not looked into this aspect which resulted in great prejudice to the appellant.
f) The legal notice was issued before presented the said cheque in question was not looked in to the court below. Hence, there is no legally enforceable debt the judgment is erroneous in as much as the accused as specifically stated in the evidence that the cheque was not issued by the appellant on 25.7.2012.
g) The court below erred in not raising a presumption as contemplated under Sec.139 of the NI Act in favour of the holder and as such has given an erroneous conclusion. 6 Crl.A.No.437/2015
h) The court below erred in not appreciating the cross examination by the accused in court below in as much as an unequivocal terms not admitted the fact that he had not given the cheque in question to the respondent. The court failed to notice the Ex.P1 except the signature all the columns are different that he admits in his cross examination.
Hence, learned advocate for appellant prayed this court to set aside the judgment of conviction and sentence passed and acquit the appellant in the interest of justice and equity.
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?
7. My findings to the above points are:
7 Crl.A.No.437/2015
1) In the Partly Affirmative
2) As per final Order, for the following:
REASONS
8. POINT No.1: The complainant has filed this case against the accused for the offence punishable under Sec.138 of NI Act. During the course of trial complainant himself examined as Pw1 and got marked documents Ex.P1 to P7. On the other hand accused himself as DW.1. Court after appreciating both oral and documentary evidence adduced and produced both the parties passed an order of conviction convicting the accused and sentenced him accordingly. Being aggrieved by judgment of conviction and sentence accused preferred this appeal for setting aside judgment of court below and allowing this appeal in the interest of justice and equity. The appellant has filed the appeal on the grounds that a) The impugned judgment is erroneous in law.
8 Crl.A.No.437/2015
b) There is no legally recoverable debt between the complainant and the accused and there are no monetary transactions between the complainant.
c) the learned CMM has not appreciation of evidence of his defense evidence and after not considering the rival contentions the amount has been paid to the Appellant the way back in the year 2007 and e3arlier to that the complainant was in Dubai but there is income tax returns nor bank balance as on the date of the lending of the amount he has not produced any documents before the trial court, the trial court has not considered the cross examination made by the accused/appellant properly while passing the judgment.
d) The Court below erred in convicting the accused/appellant solely on the ground that the complainant was proved when he examined whether you are an income tax assessee or not he has admitted in his cross examination but no documents were produced, at one 9 Crl.A.No.437/2015 stretch nobody will lend so much of liquid cash for a sum of Rs.7,50,000/- as mentioned in his complaint. The trial court has rejected the application filed under Sec.311 of the Cr.P.C. for recalling of the complainant/respondent for cross examination of the financial status of the complainant but the trial court has rejected and the appellant has preferred a revision also but the same has been rejected on 26.2.2015 when the same CC:24453/2012 was posted for judgment on the same day it was dismissed.
e) There are no monetary transaction between the complainant/respondent and the accused/appellant, though the accused has come out with a defense that the cheque in question have taken by the complainant in the year of 2007 the same is barred by limitation the court below has not looked into this aspect which resulted in great prejudice to the appellant.
f) The legal notice was issued before presented the said cheque in question was not looked in to the court 10 Crl.A.No.437/2015 below. Hence, there is no legally enforceable debt the judgment is erroneous in as much as the accused as specifically stated in the evidence that the cheque was not issued by the appellant on 25.7.2012.
g) The court below erred in not raising a presumption as contemplated under Sec.139 of the NI Act in favour of the holder and as such has given an erroneous conclusion.
h) The court below erred in not appreciating the cross examination by the accused in court below in as much as an unequivocal terms not admitted the fact that he had not given the cheque in question to the respondent. The court failed to notice the Ex.P1 except the signature all the columns are different that he admits in his cross examination. Hence, prayed to allow the appeal.
Complainant Sheshadrinathan filed affidavit in lieu of examination in chief and examined himself as PW1 and got marked documents Ex.P1 to P7 in support of his case. In his cross examination he deposed that he knew accused since 11 Crl.A.No.437/2015 2007 previously he was working as paints sales man at Saudi Arabia. He has not stated in his complaint. Accused became his friend through one Jose. In the year 2007 Jose accompanied him to office of accused. Same he has not stated in the complaint. He had invested 35 lakhs with accused Giridhar Srinivas. Same he has stated in para 3 of examination in chief or he filed documents to show that he has earned so much of amount and there is also bank statement to that effect, but he filed only the Xerox statement and he has filed original documents in some other case. In that statement source is not mentioned. accused is running proprietorship concern. Accused demanded amount for development of the company hence, he paid loan to him. So for he did not visited company of accused and there is no memorandum of understanding between himself and accused. He also taken amount from his wife for payment of loan to accused. He did not give any documents to show that he was working at Saudi 12 Crl.A.No.437/2015 Arabia as alleged by complainant. He was paying amount to accused from 2007 itself. Accused was intending to develop temple view project. He did not visited temple view project. He did not obtain any receipt from accused for payment of loan, but he has submitted bank statement. He denied several suggestions put by learned counsel for the accused. Accused Giridhar Srinivas examined himself as DW1. In his chief examination he deposed that complainant known to him for the past 4 to 5 years through one broker Damodhar. There was no transaction between himself and complainant. He did not own any project as alleged by complainant. But he had done some other project. He denied his signature in Ex.P1. In his cross examination he clearly admitted that the signature in Ex.P1 cheque belong to him. He failed to recount signature found on Ex.P12. Ex.P16 letter belongs to him. He was doing real estate from the year 2006. He create a doubt that whether person Jose is called as Damodhar. 13 Crl.A.No.437/2015
He further deposed that he did not file any complaint against the complainant for mis appropriation of cheque. He clearly admitted that several cases have been filed against him for cheque bouncing, he also admitted that in CC.No: 35641/2010 court has convicted him. He has filed appeal against conviction. He also clearly admitted that intentionally he had closed the account by issuing cheque though he had sufficient amount for payment of loan to complainant.
On analyzing the case of appellant as well as accused it is clear that though accused denied his signature in Ex.P1 but in his cross examination he clearly admitted that the signature found in Ex.P1 and P1(a) belongs to him. He fails to recount how that cheque moved from his hand to hand of complainant and not filed any complaint before the police against the complainant for misappropriation of his cheque. Under these circumstances, this court rely case law reported in 2013(2) Kar.L.J. 569 High Court of Karnataka, 14 Crl.A.No.437/2015 Circuit Bench at Gulbarga in Smt.Peeranbi V/s Hajimalang wherein it is held that:
" NEGOTIABLE INSTURMENTS ACT, 1881, Sections 138 and 139 - Most dangerous provision - Double edged provision - Traders and citizens to be very careful - In dealing with cheque - Trial Court committed error by comparing signature of accused - with that of signature on vakalath - Trial Court acquitted accused - These proceedings were not in nature of a suit for recovery of money - Limited scope - Whether there was dishonor of cheque - Held, the aspect of dishonor of cheque established thus the accused is sentenced to pay a fine of Rs.3,50,000/- only thus appeal is allowed."
And a decision reported in 2013(3) Kar.L.J. 347 High Court of Karnataka at Bangalore in M.D.Ramakrishnaiah V/s V.Javaregowda wherein it is held:
15 Crl.A.No.437/2015
" NEGOTIABLE INSTRUMENTS ACT, 1881 , Section 138 - Giving blank signed cheques - To any third person - Is very dangerous - You may be behind the bars - Filling the blanks by other person is no defence - Trial Court rejected the application - Held, if signature is admitted on the cheque there is no need to get opinion of expert in respect other contents of cheque."
09. Hence, in view of above said facts and circumstances of the case and case laws it is clear that the trial court rightly convicted the accused for the alleged offence , this court find no reasonable grounds to interfere in to the orders of conviction but at the time of passing the sentence the trial Judge has passed the sentence as if the dispute arising out of civil nature. Hence interference with regard to passing of sentence is required in this case. Accordingly, this court hold Point No.1 in the partly Affirmative.
16 Crl.A.No.437/2015
10. POINT No:2 In view of my finding to the point No.1 and for reasons discussed above, I proceed to pass following ORDER The Criminal Appeal filed by the appellant under Sec.374 Cr.P.C. is hereby partly allowed.
Order of conviction passed by XIX Addl.CMM, Bengaluru in CC.No:24453/2012 dated: 26.2.2015 is hereby confirmed.
Accordingly, accused is sentenced to pay fine of Rs.7,55,000/- as fine for the offence committed under Sec.138 of NI Act. Among which 7,50,000/- is paid as compensation to complainant and Rs.5000/- as fine to State. In default accused shall undergo Simple imprisonment for a period of six months. Send LCR along with the copy of this order forthwith to the trial court.
(Dictated to the Judgment writer on Computer, corrected by me and pronounced by me in the open court on this 4th day of January 2016) (A.VIJAYAN), LXVI Addl.CC & SJ, Bangalore.