Bangalore District Court
Shirley Jennifer Gomes vs Cladius Lobo on 23 February, 2024
KABC010028742023
IN THE COURT OF THE LXII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-63), BENGALURU.
DATED: THIS THE 23 rd DAY OF FEBRUARY, 2024
PRESENT
Sri A. EARANNA, M.Com., LL.M.,
LXII Addl. City Civil & Sessions Judge,
Bengaluru.
CRIMINAL APPEAL No. 144/2023
APPELLANT/ Smt. Shirley Jannifer Gomes,
ACCUSED : W/o Mr. Allwin,
Aged about 34 years,
R/at NEFT, No. 9,
R-Street, Shanthinagar,
Bengaluru-560 27
By Manushankar S S, Advocate.
VS
RESPONDENT/ Mr. Cladius Lobo,
COMPLAINANT: S/o Late Basil Lobo,
Aged about 74 years,
R/at No. 24, 2nd Floor,
Church road, Shantinagar,
Bengaluru-560 027
(By Sri. N.H., Advocate)
JUDGMENT
This is a criminal appeal preferred by the appellant/accused person under Section 374(3) of Cr.P.C., 2 Crl.A.No. 144/2023 being aggrieved by the conviction judgment passed by the learned XX Addl. Chief Metropolitan Magistrate, Bengaluru, dated 07.01.2023 in C.C.No.18409/2019.
2. For the sake of convenience, the appellant and respondent of the present case will be referred by their original status before the Trial Court. The appellant are the accused and respondent is the complainant before the Trial Court.
3. The brief facts of the case are as under:
It is averred in the complaint that, the accused is a friend of complainant and well known to each other from past several years and had availed hand loan of Rs.2,00,000/- in the month of August 2018 for her sister marriage and has promised to repay the said amount within in four months. After expiry of the said period, accused did not keep up his promise. On consistent demands and requests made by the complainant, towards his discharge of her liability, the accused has issued post dated cheque bearing No.257177 dated 18.06.2019 for a sum of Rs.2,00,000/- drawn on Guardian Souhardha 3 Crl.A.No. 144/2023 Sahakari Bank Niyamitha Bengaluru in favour of the complainant. The complainant has presented the said his banker i.e., cheque for encashment through Corporation Bank, Shanthinagar Branch, Bengaluru, but it unpaid with banker's endorsement dated returned on 19.06.2019 as "Funds Insufficient". On 25.06.2019, demand notice was issued to the accused and the said demand notice was duly served on accused as intimation delivered and not claimed on 25.06.2019 & 26.06.2019 to the both addresses of the accused. In spite of service of legal notice, the accused neither has paid the cheque amount nor has given any reply. On these grounds, it is sought to convict the accused for the offence punishable under section 138 of NI Act and grant compensation as per section 357 of Code of Criminal Procedure.
4. Thereafter, the learned Magistrate has taken cognizance of the offence and recorded sworn-statement of the complainant. The Trial Court after finding a prima-facie case against the accused registered the case and issued process. The accused on service of summons appeared before the Trial Court and was enlarged on bail. Plea was 4 Crl.A.No. 144/2023 read over and explained to the accused. Accused pleaded not guilty and claimed to be tired. The case was posted for trial of the accused.
5. In order to bring home the guilt of the accused, the complainant examined himself as PW.1 and got marked documents at Exs.P.1 to P.7. After closing the evidence of complainant's side, the accused has cross-examined the PW1. accused were examined U/s 313 of Cr.P.C. statement, in which she has totally denied the entire case of the complainant. In support of her defence, accused examined one Shirley Jennifer Gomes W/o Allwin as DW1 and got marked Ex.D1.
6. After hearing both the parties, on appreciation of oral and documentary evidence on record, the learned Magistrate has convicted the accused/appellant for the offence punishable under Section 138 of N.I Act and sentenced her to pay fine of Rs.2,60,000/-. In default, she shall undergo SI for three months. An amount of Rs. 2,50,000/- shall be paid to the complainant as a compensation, remaining fine amount of Rs.10,000/- is 5 Crl.A.No. 144/2023 defrayed to the state for the expenses incurred in the prosecution.
7. Aggrieved by the impugned Judgment of the Trial Court, the appellant/accused is before this Court with this appeal. The accused/ appellant have contended that the Judgment of the Trial Court is perverse, illegal and unsustainable under law. The Trial Court erred in law in accepting and acting upon the evidence of P.W.1 which is being inadmissible. Therefore, the appellant pray to set aside the judgment and sentence passed by the trial Court and acquit the accused for the alleged offence.
8. Trial Court record was called for. The respondent appeared before the Court through his counsel on service of notice.
9. Heard arguments. Perused the records.
10. The following points arise for the consideration of the court :-
1) Whether the appellant has made out grounds to allow the appeal ?
2) What order?6 Crl.A.No. 144/2023
11. The findings of the Court on the aforesaid points are as under :
Point No.1 :- In the Negative
Point No.2 :- As per final order for the
following:
REASONS
12. POINT NO.1:- Counsel for the appellant argued that appellant had not gave cheque for discharge of debt. Respondent visiting the house of the appellant then cheque was taken and mis used by the respondent. Respondent is not having any source of income to pay amount of Rs.2,00,000/-. Apart from this case he had also filed another complaint U/s 138 of N.I. Act before JMFC-V, Mangalore, that he had mis used the cheque. Same is not considered by the Court, strait away passed the impugned judgment. Therefore he prays to allow the appeal and set aside the judgment passed by the XX ACMM Court.
13. On the other hand counsel for the respondent argued that complainant and accused are known to each other. Appellant had approached and asked the amount for her sister marriage. Then in the month of August-2018, 7 Crl.A.No. 144/2023 respondent paid an amount of Rs. 2,00,000/-. To discharge of said debt, the appellant had issued the cheque assuring that the said cheque will be honoured if presented. Believing the words, complainant presented the said cheque, same is dishonored as "Funds Insufficient". After receiving the bank memo, respondent got issued the legal notice. But appellant has not received the said notice. On compliance of section 138(a) of N.I. Act, respondent had approached the Court. After considering the evidence and documents, Court has rightly passed the judgment. Instead of paying the fine amount, appellant has preferred the appeal. No grounds made out, hence he prays to dismiss the appeal and confirm the judgment passed by learned XX ACMM, Bengaluru.
14. On perusal of the complaint as well as evidence of PW1 and DW1, complainant and accused are known to each other. Appellant is giving tuition to the daughter of the respondent. That due to giving tuition to the daughter of the Respondent, that they known to each other since 6-7 years. Respondent was working as Engineer in abroad and he was returned to Bengaluru. After came from abroad he 8 Crl.A.No. 144/2023 has purchased two taxies. He has suffered losses, then he has sold two taxies and got amount of Rs. 6,00,000/-. Then in the month of August-2018, appellant approached the respondent and sought an amount of Rs.2,00,000/- for her sister marriage. Accused has taken contention that signature and contents written in the cheque are not belongs to her and there is difference in the signature and contents of the said cheque. Appellant has cross examined PW1 stating that, said cheque was given as security purpose, same was denied by the PW1. Further appellant has taken contention respondent by taking the said cheque mis used. From the evidence of PW1 it clear that said cheque was given to the respondent. At the same time appellant has taken contention that respondent visiting her house and said cheque was stolen and by taking said cheque he is blackmailing her. Appellant has taken different stand, once stretch she has taken contention the said cheque was theft and same was mis used by the respondent by blackmailing her. Another stretch she has taken the said cheque was issued for security purpose. In the evidence she has stated she has not taken any legal 9 Crl.A.No. 144/2023 action against the respondent stating that respondent has taken the cheque without her knowledge and making blackmail. Even though she has not taken any legal action against the respondent stating that without her knowledge said cheque was taken by the respondent and it was not issued for discharge of any debt. On the other hand she has taken contention said cheque belongs to her account and signature and contents of cheque are not belongs to her. PW1 deposed while giving the cheque, appellant and her husband in the presence of their father the said cheque given to him. Appellant has taken contention signature appearing on the said cheque not belongs to her. When the cheque was presented for encashement the bank authority has gave the endorsement as "Funds Insufficient" but said cheque was not returned as signature differs. If the signature is not belongs to the appellant and it differs then the bank authorities may give endorsement stating that signature differs. In the case on hand bank authorities have not given endorsement as signature differs. On the other hand issued the endorsement as Funds Insufficient. Therefore the contention taken by the appellant that 10 Crl.A.No. 144/2023 signature appears on the said cheque is not belongs to her cannot be acceptable one.
15. Appellant has stated in her evidence that Ex.P1 belongs to her account and "had misused the same thus committed theft, forgery and fabrication of false evidence and cheating to me by filing the present complaint". As already stated above appellant is working as lecturer in a private college, then when she came to know her cheque was mis used or committed theft, forgery, then why she has not taken legal action against the respondent has not at all stated. In the examination in chief she has not stated that she has not signed on the said cheque. On the other hand she has taken contention said cheque was stolen. When she came to know that the cheque was not found in the said place then why she has not lodged the complaint before the police has not at all explained in her evidence. On the other hand she has stated she has not lodged the complaint before the police regarding mis place of the said cheque and she deposed she has not issued paper publication stating that her cheque was mis placed. She has not at all stated in her examination in chief that why 11 Crl.A.No. 144/2023 she has not lodged the complaint nor gave the paper publication. But she has taken contention, said cheque is not given to the respondent. Even she deposed she has not lodged the complaint before the police itself shows that she had issued the Ex.P1 for discharge of debt. But to escape from the liability she has taken contention that Ex.P1 cheque was stolen by the respondent. Even she came to know cheque was mis placed or mis used by the respondent then why she has not intimated her banker to stop payment has not at all stated in her evidence. Prudent man will not keep blank signed cheque in careless manner in the house which is accessible to the common people. In the examination in chief she has not stated without signing the cheque she was kept the same in her house. On careful perusal of the entire examination in chief she has not at all stated where she had kept the Ex.P1 in her house. Therefore the contention taken by the appellant cannot be taken into consideration.
16. Appellant has taken contention no notice has been served on her. Without service of notice respondent has filed the complaint which itself shows that complaint is not 12 Crl.A.No. 144/2023 maintainable. Inspite of it learned 20 th ACMM, Bengaluru passed the impugned judgment. PW1 deposed he had issued the notice where appellant is residing and where she was working. But the said notices are returned as "not claimed, returned". DW1 deposed in her evidence that it is true that in the Ex.P6 her college address was mentioned. It is true in the Ex.P7 her house address is mentioned. On going through the evidence of DW1, it is clear that she was working in the address mentioned in the Ex.P6 and she was residing in the addition mentioned in the Ex.P7. Even though DW1 has not placed any document to come to conclusion that she was not resided in the address mentioned in Ex.P7 and she was not working in the address mentioned in the Ex.P6.
17. At this juncture, this Court relied the following Judgments:
AIR 1992 Supreme Court 1604 Jagadish Singh- Appellant -Vs- Natthu Singh- Respondent:
(A) General Clauses Act, S.27-Notice -
Presumption of service - Refusal by addressee to accept - Notice must be presumed to have been served. Evidence Act (1 of 1872), S.114.13 Crl.A.No. 144/2023
(1996) 7 Supreme Court cases 523: State of MP Vs Hiralal and Others (A) Supreme Court Rules, 1966 -Pt.II, Or.XV, R.11 - Notice to respondent - Service of -
Addressee respondents managing to have the notices returned with postal remarks "not available in the house", "house locked" and "shop closed" respectively - Held, notices must be deemed to have been served on the respondents -
Evidence Act, 1872, S. 114, III. (e) -
General Clauses Act, 1897, S.27.
High Court of Karnataka in Crl.Rev. Petn. No.469/2011 dt. 19.08.2020 T.Babu Vijayendra -Vs- Ramesh No doubt, the notice sent to the accused has been returned as per Ex.P.6 which is a returned postal cover with the postal shara 'addressee left'. In that regard, the accused got examined one Sri.N.Chandrachary as DW-4 who was stated to be the postman. The said witness in his evidence has stated that the registered postal article at Ex.p.6 was not delivered to the accused as the accused had already left the address mentioned on the cover. In his cross-
examination, this witness also stated that, about non availability of the accused, he enquired with the neighbours in the address and came to know that accused had already left the premises.
14 Crl.A.No. 144/2023
18. On perusal of Ex.P.3, it reveals that the complainant had got issued the legal notice calling upon the appellant to pay the amount mentioned in Ex.P.1. Complainant had produced Ex.P6 & P7 Returned postal covers. It reveals that the notice was returned as Unclaimed. For the sake of argument, assuming that no notice has been served on the accused, then it is the duty of the accused to prove that she was not resided in the said address at the time of issuance of Ex.P3. Accused has not produced any document that he was not resided in the address mentioned in Ex.P3. As per the Section 27 of General Clauses Act, 1897 and ratio laid down in the above said Judgments, the Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka have held that, if the notice was sent to the correct address, then the notice was returned as left the address, intimation delivered, refused, not claimed, door locked etc., then as per the above said provisions and ratios laid down in the above said Judgments, the notice is deemed as served. However, the accused has not produced any single document to come to conclusion that she was not resided in the address as 15 Crl.A.No. 144/2023 mentioned in Ex.P3. Therefore, as per the above said provision, that the notice was deemed as served on the accused and the contention taken by the accused cannot be taken into consideration.
19. Appellant has taken contention that apart from this case respondent has filed another complaint U/s 138 of N.I. Act before the learned 20 th ACMM, Bengaluru. So also he has filed another case at Mangaluru. That he has not at all having sources of income to pay the amount. To harass the appellant, he has filed the said case. PW1 admitted in the evidence he has filed the case before Mangaluru JMFC-V Court, so also he has filed another case against her husband, in which appellant has produced the document to show that respondent had filed the complaint U/s 138 of N.I. Act. No doubt the transaction may be different then he has filed the complaint before JMFC-V Court, Mangaluru and her husband was taken the loan for domestic needs as well as her children education. On perusal of the records respondent and appellant are known to each other. So also husband of the appellant. Then husband of the appellant may be taken the loan that may 16 Crl.A.No. 144/2023 be different transaction. Therefore filing the complaint against her husband and also before JMFC-V Court, Mangaluru is not bar for filing the complaint by filing the said complaint the respondent case cannot be thrown out.
20. Counsel for the appellant argued that no person can give more than Rs.20,000/- in cash. The respondent has stated he has paid an amount of Rs.2,00,000/-, that as per the I.T. Act rules, persons cannot give amount in cash more than Rs. 20,000/-. Therefore, respondent has not paid the amount in cash. On this count he prays to set aside the judgment. As per the records, complainant has stated he has sold his taxies and he got money of Rs.6,00,000/-. May be as per the I.T. rules no person can give more than Rs.20,000/- in cash, but if he had paid Rs. 20,000/- in cash then competent authority may take action against the respondent. Based on the said document, Court cannot come conclusion appellant had not taken the said loan amount and not issued the cheque for discharge of debt.
17 Crl.A.No. 144/2023
21. This Court relied on the judgment in the case of Rohitbhai Jivanlal Patel -Vs- State of Gujarat and another's case held that, "If the transaction in question was not reflected in the accounts and income-tax returns, that would at best hold the assessee or lender liable for action under the income tax laws but, if the complainant succeeds in showing the lending of amount, the existence of legally enforceable debt cannot be denied".
22. Initial burden is on the complainant that the cheque was issued for discharge of debt, said cheque was presented for encashment. Cheque was returned for funds insufficient. Then he ought to issue intimation to appellant to pay the amount mentioned in the cheque, then presumption available U/s 118 and 139 are rebuttable presumption that appellant ought to produce the evidence and documents to come to conclusion she not issued the cheque for discharge of debt and she is not liable to pay the amount as claimed by the respondent. It is not disputed appellant and respondent are known to each other. It is 18 Crl.A.No. 144/2023 also not disputed Ex.P1 cheque belongs to her account. Appellant has taken contention said cheque was stolen and mis used by blackmailing her. When she came to know that the respondent blackmailing then why she has not taken any legal action against him has not at all stated in her evidence, nor she has produced the document. Under such circumstances the appellant has not established that she has not issued the cheque for discharge of debt and same was mis used by the respondent.
23. It is burden on the appellant to prove that she has not issued the cheque for discharge of debt and same is for security purpose. In the present case no such efforts has been made by the appellant. These are all circumstances shows that in order to escape from the payment of compensation amount appellant has filed the above said appeal. Under such circumstances, appellant has not made out any grounds to interfere in the judgment passed by the trail Court.
24. In the case of 2010 AIR SCO 296 Rangappa Vs Mohan wherein the Hon'ble Supreme Court has held that 19 Crl.A.No. 144/2023 the presumption that the cheque was drawn in discharge of legally recoverable debt is a presumption of law that ought to be raised in every case. Accused has failed to produce the presumption available under section 118 and 139 of N.I. Act.
25. In addition to this in the case of T.P. Murugan (Dead) Through legal representatives Vs Bojan (2018 (8) SCC 469), the Hon'ble Court has held that "once the cheque has been signed and issued in favour of the holder of the cheque, there is statutory presumption that the cheque is issued in respect of legally enforceable debt or liability". In the present case the appellant has not denied the issuance of cheque and signature on the said cheque. When the accused admitted the issuance of the cheque then burden lies on the appellant to prove that he has not issued cheque for discharge of liability. Therefore with due respect ratio laid down in the above said judgments are applicable to the present case on hand. However based on the above said judgments the accused has not produced the rebuttal evidence, therefore the accused has not proved his defence. Therefore there is no need to interfere in the 20 Crl.A.No. 144/2023 judgment passed by the XX ACMM Court, Bengaluru. Accordingly, Point No.1 is answered in the Negative.
26. POINT NO.2 :- In view of the discussions made on Points No.1, I proceed to pass the following:
ORDER The Criminal Appeal preferred by the appellant/accused U/Sec.374 (3) of Cr.P.C is hereby dismissed.
The impugned judgment of
conviction and sentence passed by the
learned XX Addl. Chief Metropolitan
Magistrate, Bengaluru, dated 07.01.2023 in C.C.No.18409/2019 is hereby confirmed.
Send back the Trial Court records along with copy of this Judgment to the Trial Court forthwith.
(Dictated to the Stenographer, typed by her directly on computer, revised, corrected by me and then pronounced in the Open Court on this the 23 rd day of February, 2024) sd/-
(A. EARANNA) LXII Addl.City Civil & Sessions Judge, (CCH-63), Bengaluru.