Bangalore District Court
Sri Thimmaiah.H.E. @ Ananda vs Sri B.Ravindra Singh on 1 August, 2016
IN THE COURT OF THE LXII ADDL.CITY CIVIL
& SESSIONS JUDGE, BENGALURU
Dated this the 1st day of August, 2016
PRESENT
************
Sri Parameshwara Prasanna,
B.A,L.L.B.,
LXII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
Crl. Appeal No.1496 /2015
APPELLANT: Sri Thimmaiah.H.E. @ Ananda,
S/o Erappa,
Aged about 32 years,
Residing at No.53, 3rd main,
Kashinagara, Yelachenahalli,
Bengaluru.
(By Sri.D.Harish Kumar, Adv)
-Vs-
RESPONDENT Sri B.Ravindra Singh,
S/o Balaji Singh,
Aged about 40 years,
R/at No.274, 80 feet road,
Srinivasanagara main road,
Srinivasanagara, Bengaluru
( By Sri.V.S.MD-Advocate)
JUDGMENT
This criminal appeal Under Section 374 of Cr.P.C is filed by the accused against the Judgment dated 18.11.2015 in 2 Crl.Appeal.No.1496 /2015 C.C.No.1046/2012 passed by the learned XXII Addl.Chief Metropolitan Magistrate, Bengaluru wherein the said trial Court convicted the appellant for an offence punishable under Section 138 of N.I.Act and sentenced him to pay a fine of Rs.2,55,000/- and in default of payment of fine to undergo simple imprisonment for one year and out of fine amount a sum of Rs.2,50,000/- has been ordered to be paid to the respondent/complainant as compensation and balance amount of Rs.5,000/- is ordered to be adjusted to the State Exchequer.
2. For the sake of convenience, the parties are referred to as per their litigative status before the trial court. The appellant is the accused and the respondent is the complainant as per their original ranks before trial Court.
3. The respondent /complainant filed the complaint against the appellant before the trial Court for the offence punishable under Section 138 of N.I.Act. The brief fact of the case as per the compliant is that:
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During June 2011, there was a sale transaction between complainant and the accused of Innova Car bearing regn.No.KA-05-MH-5744. In the said transaction the accused was due to pay Rs.2,50,000/- to the complainant. The accused promised to pay the outstanding amount within 2-3 months. After lapse of 3 months, the complainant requested the accused to pay the dues. The accused issued a Cheque for Rs.2,50,000/- dated 05.09.2011 towards discharge of debt.
The complainant presented the said Cheque for encashment, but the same is dishonoured due to "insufficient funds" in the account of the accused. Hence the complainant issued demand notice to the accused. The accused was served with the demand notice. But the accused had neither paid the Cheque amount nor gave reply to the notice. Hence the complainant was constrained to file complaint alleging that accused has committed the offence punishable U/s.138 of N.I.Act.4 Crl.Appeal.No.1496 /2015
Based on the said complaint cognizance was taken, sworn statement of the complainant was recorded and case was registered against the accused in C.C.No.463/2014 for the offence punishable under Section 138 of N.I.Act.
Upon service of summons, accused appeared and plea of the accused was recorded and he pleaded not guilty.
4. During the course of trial, in order to prove the case of the complainant, the complainant got examined himself as Pw.1 and got marked Exs.P.1 to Ex.P.7 The accused when examined U/s.313 Cr.P.C denied all the incriminating circumstances appearing in evidence against him and the accused examined himself as Dw.1, but no documents are marked in support of his defence.
5. After hearing both the parties and on appreciation of oral and documentary evidence on record earlier, the learned Magistrate convicted the accused for the offence punishable U/s.138 of N.I.Act as per Judgment dated 29.03.2014 and the accused preferred an appeal against the 5 Crl.Appeal.No.1496 /2015 same before this court in Crl.A.No.1235/2014 and this Court as per Judgment dated 18.09.2015 on the technical ground that Dw.1 led chief examination by way of affidavit instead of adducing oral evidence, remanded the case to the trial Court for affording the accused to lead defence evidence orally as per settled principles of law. That on remand of the case, the accused examined orally and after hearing both the parties, the trial Court as per Judgment dated 18.11.2015 convicted the accused for the offence punishable under Section 138 of N.I.Act by sentencing him to pay a fine of Rs.2,55,000/-.
6. Being aggrieved by the said order of the trial Court, the accused/appellant is before this Court by challenging the Judgment on the following grounds:
* The Judgment, conviction and sentence passed by the trial Court is perverse, illegal and unlawful, bad in law and the same is liable to be set-aside.
* The impugned Judgment of conviction and sentence passed by the trial court is contrary to fact and materials and evidence placed on record. 6 Crl.Appeal.No.1496 /2015 * the trial Court committed grave error by relying upon un-believable and not corroborated evidence of Pw.1. * The learned Magistrate had failed to appreciate, natural, actual and believable evidence of Dw.1. * The trial Court failed to believe defence of accused that Cheque taken in police Station from the accused has been misused by the complainant.
* The trial Court failed to note that accused has proved his defence.
Hence inter-alia on these grounds, the appellant prays for allowing of the appeal.
7. The Lower Court records secured. Heard learned counsel for the appellant and learned counsel for the respondent filed written statement. Perused the same and I have also perused the entire lower Court records pertaining to this case.
8. Under the facts and circumstances, the following points arise for my consideration:
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1. Whether the Judgment, conviction and order of sentence in C.C.No.1046/2012 dated 18.11.2015 by the learned XXII Addl.Chief Metropolitan Magistrate, Bengaluru is erroneous and illegal?
2. Whether there is any necessity for interfering with the impugned Judgment of trial Court?
3. What Order?
10. My findings to the above points are as under:-
POINT No.1:- In the Negative POINT No.2:- In the Negative POINT No.3:- As per final order, for the following:-
REASONS
11. POINT Nos.1 and 2 :-
As the points 1 and 2 are inter-related, they are taken together for discussions to avoid repetitions.
The brief facts of the case as per complainant is that, during the month of June 2011, there was a sale transaction of Innova Car bearing No.KA-05-MH-5744 between complainant and the accused. In the said transaction the accused owed 8 Crl.Appeal.No.1496 /2015 Rs.2,50,000/- to the complainant and he promised the complainant, that he will repay the said amount within 2-3 months. Accordingly after lapse of 3 months, complainant requested the accused to pay the said amount. That in discharge of said liability, the accused issued a Cheque bearing No.655543 dated 5.9.2011 for a sum of Rs.2,50,000/- drawn on SBI, Isro Layout Branch, Bengaluru, in favour of complainant and assured the complainant. That the same will be encashed. Accordingly complainant presented the said Cheque for collection, but the same is dishonoured due to 'insufficient funds' in the account of accused and thereafter the complainant got issued legal notice through RPAD calling upon the accused to pay the Cheque amount, the said notice duly served to the accused, but accused neither replied nor complied the notice, thus according to complainant the accused has committed an offence punishable under Section 138 of N.I.Act.
12. In order to substantiate the case of the complainant, he examined himself as Pw.1. In the affidavit 9 Crl.Appeal.No.1496 /2015 filed towards examination-in-chief, the complainant has reiterated the averments stated in the complaint. The documents produced by the complainant were marked before the trial Court as follows:
Ex.P.1 - Cheque
Ex.P.1(a) - Signature of the accused
Ex.P.2 - Bank Endorsement
Ex.P.3 - Office copy of the legal notice
Ex.P.4 - Postal receipt
Ex.P.5 - Acknowledgment pertaining to Ex.P.3
Ex.P.6 - Complaint
Ex.P.7 - Letter issued by accused to the
complainant
Ex.P.7(a) - Signature of the accused
In order to establish the case of the accused, the accused examined himself as Dw.1. The accused has denied the alleged loan transaction and issuance of the Cheque in discharge of the debt. The accused has contended that he had no transaction with the complainant. In the chief-examination the accused stated that a police complaint was lodged by one 10 Crl.Appeal.No.1496 /2015 B.Manjunaht before Thyagarajanagar police station against him pertaining to vehicle bearing No.KA-05-MH-5774 in PCR No.4663/2011. During the course of enquiry, the police have obtained two blank Cheques form him stating that they will settle the dispute between the accused and complainant Manjunath.B. The accused further stated that Mr.Naveen Kulkarni, Inspector of Thyagarajanagara Police Station collected all relevant documents pertaining to the said vehicle and also cash paid voucher which was paid by the accused for EMI of the said vehicle. The accused further deposed that the complainant by colluding with the police and said Manjunath by misusing the said Cheque has foisted a false case against him.
The accused further stated that complainant is a stranger to the accused, hence the question of he borrowing the amount from the complainant does not arise at all. During the cross- examination Dw.1 has admitted that the Cheque belongs to his account and he has also admitted his signature in the Cheque /Ex.P.1, but he has denied the signature in Ex.P.7. During his 11 Crl.Appeal.No.1496 /2015 cross-examination he has stated that he has not given any statement regarding receiving of Cheque and he also admitted that for issuance of blank Cheque, the police have not given any endorsement. He admitted that he has not filed any police complaint regarding misuse of the Cheque.
13. The complainant has produced Ex.P.7 which is a letter alleged to have issued by the accused to the complainant. In Ex.P.7 letter it is admitted by accused that Cheque was issued in discharge of liability. Though the accused has disputed the signature found on Ex.P.7, but on comparison by this court the signature found on Ex.P.7(a) and signature found on Ex.P.1(a) are appears to be similar.
14. Now this Court being the appellant court has to consider whether the defence of the accused is probable? According to the accused, the blank signed Cheque taken by coercion at the police station has been misused by the complainant. But it is very pertinent to note that till today accused has not taken any action against the complainant. 12 Crl.Appeal.No.1496 /2015 Admittedly no police complaint has been filed, even no intimation issued to the Bank regarding forcibly obtaining of the Cheque at the police station.
15. In this case accused admitted the signature in the Cheque and that Ex.P.1/ Cheque belongs to him. There is a presumption U/s.118 and 139 of N.I.Act in favour of holder of the Cheque, until contrary is proved, presumption is in favour of holder of Cheque that Cheque was drawn for discharge of debt or liability. In Rangappa /vs/ Mohan reported in 2010 Crl.L.J.2878, the Hon'ble Apex Court has held that:
"Once the execution of Negotiable Instrument is either proved or admitted, then the Court was drawn presumption available U/s.139 of N.I.Act to the effect that Negotiable Instrument Act has been drawn for valid consideration"
16. In this case the accused has failed to rebut presumption to the complainant U/s.118 and 139 of N.I.Act. The evidence of Pw.1 and Exs.P.1 to P.7 coupled with presumption under law establishes that Ex.P.1/Cheque was 13 Crl.Appeal.No.1496 /2015 issued towards discharge of legally recoverable debt and the appellant has not rebutted the said presumption. Considering the oral and documentary evidence, the Court below has rightly drawn the presumption U/s.139 and 118 of N.I.Act and come to conclusion that accused has not rebutted the presumption and therefore, held that accused has committed the offence. The complainant has complied with all statutory requirement U/s.138 of N.I.Act and therefore, on reconsidering the oral and documentary evidence on record, the contention urged by the learned counsel for the appellant cannot be accepted. Therefore the impugned Judgment of the trial Court does not calls for any interference. Accordingly, I answer point Nos.1 and 2 in the Negative.
17. POINT NO.3: - In view of the above discussions and my findings on point Nos.1 and 2, I proceed to pass the following:
14 Crl.Appeal.No.1496 /2015
ORDER The criminal appeal filed by the appellant/ accused under Sec.374 of Cr.P.C. is hereby dismissed.
The order of conviction and sentence passed by the learned XXII Addl. Chief Metropolitan Magistrate, Bengaluru dated 18.11.2015 in the Judgment in C.C.No.1046/2012 is hereby confirmed.
Send the copy of the Judgment along with records to the Lower Court forthwith.
(Dictated to the Judgment-writer, transcribed and typed by her, corrected and then pronounced by me in the open court on this the 1st day of August, 2016).
(Parameshwar Prasanna.B.) LXII Addl. C.C. & Sessions Judge, BANGALORE CITY.15 Crl.Appeal.No.1496 /2015