Indian Kanoon - Search engine for Indian Law

Bangalore District Court

Cheluvaraju vs C. Subramanyam on 19 October, 2015

 BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
          JUDGE, BANGALORE CITY.
                  (CCH-67)

 DATED THIS THE 19th DAY OF OCTOBER 2015.

                       PRESENT

         SRI.VIJAYAN.A., B.A.(LAW), LL.M.
         LXVI Addl.City Civil & Sessions Judge

             Crl.A.No.1283/2014

APPELLANT        Cheluvaraju,
                 S/o Dolle Gowda,
                 Aged about 48 years,
                 R/at No.77, 4th Main Road,
                 Kashinagar, Yelachenahalli,
                 J.P.Nagar Post,
                 Bengaluru.

                 (Rept.   by   Sri.S.      Narayana
                 Murthy, Adv.)
                      VS.
RESPONDENT       C. Subramanyam,
                 S/o Kuppaiah,
                 Aged about 64 years,
                 R/at                         No.9,
                 Lakshmivenkateshwara        Nilaya,
                 Opp. Vidhyanikethan School,
                 Jaraganahalli, J.P. Nagar Post,
                 Bengaluru.

                 (Rept.  by   Sri.N.K.   Venkata
                 Ravana Reddy, advocate)
                                2             Crl.A.No.1283/2014
                   JUDGMENT

Appellant has preferred this appeal being aggrieved by Judgment of conviction and sentence passed in C.C. No.30652/2011 dated 21/10/2014 by the learned 16th ACMM, Bengaluru.

2. Brief facts of the complainant's case are that:-

The complainant and accused were friends from several years. On 07/05/2008 the accused requested the complainant to lend hand loan of Rs.50,000/- to improve his business and promised the complainant to pay the said amount within three months. The complainant accepted the request of the accused and paid a sum of Rs.50,000/- to the accused on 07/05/2008 by way of cash and accused has executed on demand promissory note dated 07/05/2008 in favour of the complainant and accused also agreed to pay the interest of Rs.750/- p.m. It is further submitted that, the accused has not paid the 3 Crl.A.No.1283/2014 interest or the principal amount within the period of three years and the complainant approached the accused several times through telephone and also personally, but the accused did not give proper reply for returning the amount with interest and he was postponing the same on some pretext. Hence, on 05/05/2011 the complainant got issued legal notice to the accused by registered post and the same was served on him, but the accused did not pay the loan amount. Thereafter, on 15/05/2011 the accused had come to the complainant's place and agreed to pay the principal amount with interest in one lump sum and issued cheque bearing No.688728 dated 16/05/2011 for a sum of Rs.77,000/- drawn on Vijaya Bank, Banashankari branch, Bengaluru. On 16/05/2011 the complainant had presented the said cheque to the bank for encashment and on presentation of the said cheque, same was returned to the complainant with bank endorsement as 4 Crl.A.No.1283/2014 "insufficient funds" on 18/05/2011. Thereafter, the complainant got issued the legal notice to the accused through registered post on 31/05/2011, the same was served upon the accused. Inspite of it, the accused has not paid the cheque amount. Hence, the complainant filed private complaint before 16th ACMM, Bengaluru.

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.11. 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 learned magistrate vide his order dated 21/10/2014 was pleased to convict the appellant/accused for the offence punishable under Sec.138 of N.I. Act and sentenced him to pay 5 Crl.A.No.1283/2014 sum of Rs.55,000/- and in default to suffer SI for three months.

4. Aggrieved by said judgment of conviction and sentence the appellant herein has approached this court for the following among other grounds:-

a) The judgment of conviction and sentence passed by the court below is totally contradictory to the evidence on record which is not sustainable in eye of law and same is liable to be set aside.

b) The trial court has failed to consider the material facts in the above case and has reached a wrong conclusion of convicting the appellant though the evidence lead in the respondent does not support the same.

c) The learned magistrate has failed to appreciate and assess the evidence with a judicial mind and has gone ahead to reach to wrong conclusion in the above case.

d) The trial court has completely failed to appreciate the rebuttal evidence led by the appellant in the above case and has completely ignored the evidence brought in favour of the appellant while passing the impugned judgment.

e) The learned magistrate has not taken in to consideration the material surrounding for circumstances which are vital to the defence of the appellant and the impugned judgment is totally one sided one.

f) The trial court has failed to consider the well settled principle of preponderance of probabilities as observed by Hon'ble Supreme Court.

g) The trial court has reached an erroneous conclusions, by not considering the fact that, the respondent has failed to prove the alleged transaction of hand loan by any other material, cogent evidence to substantiate the case of the respondent. 7 Crl.A.No.1283/2014

h) The respondent has created a false story just for the purpose of harassing and making illegal monetary gain from the appellant which fact has been overlooked by the trial court.

i) The respondent has not produced any evidence to show that, appellant to discharge a legally enforceable debt issued the cheque in question and the learned magistrate has reached a wrong conclusion in the above case and wrongly passed the impugned judgment.

j) The respondent had taken the cheque as a security and appellant did not fill the said cheque and the signature of the appellant in the cheque is also different. The promissory note filled by the respondent entirely different from the signature found in the cheque.

k) On plain reading of the impugned judgment, there is no cogent reason to be found which supports the conclusion reached by the learned magistrate. 8 Crl.A.No.1283/2014

Hence, impugned judgment is liable to be set aside and it does not consist of legal and judicial reasoning.

Hence, learned advocate for appellant prayed this court to set aside the judgment of conviction and sentence passed in C.C. No.30652/2011 dated 21/10/2014 by the learned 16th ACMM, Bengaluru and acquit the appellant in the interest of justice and equity.

5. Heard both sides.

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:

1) In Negative,

2) As per final Order, for the following:

REASONS

8. POINT No.1: The complainant and accused were friends from several years. On 07/05/2008 the accused requested the complainant to lend hand loan of Rs.50,000/- to improve his business and promised the complainant to pay the said amount within three months. The complainant accepted the request of the accused and paid a sum of Rs.50,000/- to the accused on 07/05/2008 by way of cash and accused has executed on demand promissory note dated 07/05/2008 in favour of the complainant and accused also agreed to pay the interest of Rs.750/- p.m. It is further submitted that, the accused has not paid the interest or the principal amount within the period of three years and the complainant approached the accused several times through telephone and also personally, but the accused did not give proper reply for returning the amount with interest and he was postponing the 10 Crl.A.No.1283/2014 same on some pretext. Hence, on 05/05/2011 the complainant got issued legal notice to the accused by registered post and the same was served on him, but the accused did not pay the loan amount. Thereafter, on 15/05/2011 the accused had come to the complainant's place and agreed to pay the principal amount with interest in one lump sum and issued cheque bearing No.688728 dated 16/05/2011 for a sum of Rs.77,000/- drawn on Vijaya Bank, Banashankari branch, Bengaluru. On 16/05/2011 the complainant had presented the said cheque to the bank for encashment and on presentation of the said cheque, same was returned to the complainant with bank endorsement as "insufficient funds" on 18/05/2011, Thereafter, the complainant got issued the legal notice to the accused through registered post on 31/05/2011, the same was served upon the accused. Inspite of it, the accused has not paid the 11 Crl.A.No.1283/2014 cheque amount. Hence, the complainant filed a complaint before the learned 16th ACMM, Bengaluru.

9. P.W. 1 filed affidavit in lieu of examination- in-chief and he produced documents and marked cheque as Ex.P.1 and he identified the signature of accused at Ex.P.1(a), endorsement issued by bank is at Ex.P.2., office copy of notice is at Ex.P.3, postal receipt is at Ex.P.4, postal acknowledgment is at Ex.P.5, pro-note is at Ex.P.6, payment receipt is at Ex.P.7, original complaint is at Ex.P.8. Thereafter, identified the signature of accused Cheluvaraju in Ex.P.6 and P.7 and another notice marked as Ex.P.9, another postal receipt is at Ex.P.10, postal acknowledgement is at Ex.P.11. In his cross- examination he deposed that, accused known to him from past 16 years and he is dong finance business and he has paid the amount to the accused 8 to 7 times previously and he failed to recount the exact dates. Usually, while he pay any amount as a security 12 Crl.A.No.1283/2014 he would take pro-note and cheques. He also paid loan to the accused at about 10 years back. At that time, he did not took any security documents from accused and he clearly admitted that, while paying loan he would take blank cheque from loanee. He has clearly admitted that, he has received blank cheque from the accused. Thereafter he filled it and he himself has written Rs.77,000/- in the cheque and clearly admitted that, '7' has been correct in the cheque. He had written the name and date in the cheque and he further deposed that, he is working as meter reader in BESCOM. He has studied up to SSLC. He has received one pro-note from the accused on 07/05/2008 which are already marked as Ex.P.6 and P.7 and notice given on pro-note is already marked as Ex.P.9 and he denied several suggestions put by learned defense counsel including the suggestion of forgery.

10. Learned advocate for respondent/complainant vehemently argued that, the learned advocate for accused in the cross- examination of P.W. 1 suggested that, complainant misusing blank cheque has entered the amount as per his whims and fancies and also forged the cheque and thus committed fraud on the accused that ultimately ended in conviction of the accused. At this stage, the learned counsel for the complainant enlightened this court that, Sec.102 of Evidence Act very clear that, if a party alleges fraud or forgery he has to prove it. If he fails to prove the other party would win the case.

11. SECTION 102 of the Indian Evidence Act reads thus:-

" On whom burden of proof lies- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side".

The illustration 'B' apply to the case on hand which reads as follows:-

b) 'A' sues 'B' for money due on a bond. The execution of the bond is admitted, but 'B' says that it was obtained by fraud, which 'A' denies. If no evidence were given on either side, 'A' would succeed, as the bond is not disputed and the fraud is not proved".

12. Therefore, in this case, complainant admitted that, he had received cheque from the accused after payment of loan and he himself has filled the cheque, but accused alleged that, complainant played fraud and filed this case for unlawful gain. Under these circumstances, the burden is on the accused to prove the fraud played by the complainant. But, accused failed to prove fraud committed by the complainant with material supportive, corroborative evidence with cogent reasons. Automatically, complainant won the case. 15 Crl.A.No.1283/2014 Hence, trial court has rightly convicted the accused for the offence punishable under Sec.138 of N.I. Act. Hence, this court finds no illegality in the impugned judgment and sentence passed by the trial court. Accordingly, this court holds POINT No.1 in the NEGATIVE.

13. 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 is hereby dismissed.

Order of Judgment of conviction and sentence passed by 16th ACMM, Bengaluru in C.C. No.30652/2011 dated 21/10/2014 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 19th day of October 2015) (A.VIJAYAN), LXVI Addl.CC & SJ, Bangalore.

19.10.2015 App. SNM Res: NKVR For Judgment Case called out and order passed and pronounced in open court. Operative portion of the order is as under:

ORDER The Criminal Appeal filed by the appellant is hereby dismissed.

                          Order       of        Judgment      of
                   conviction and sentence passed
                   by 16th ACMM, Bengaluru in C.C.
                   No.30652/2011                         dated
                   21/10/2014              is     here        by
                   confirmed.
                          Send LCR along with the copy of

this order forthwith to the trial court.

LXVI Addl.CC & SJ, Bangalore.