Bangalore District Court
Smt. G. Jamuna vs W/O K. Nanjundamurthy on 15 November, 2021
IN THE COURT OF THE LXII ADDL.CITY CIVIL
& SESSIONS JUDGE, BENGALURU
Dated this the 15 th DAY OF NOVEMBER, 2021
PRESENT
SRI. R. ONKARAPPA, B.Sc, L.L.B.
LXII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU (CCH-63)
Crl. Appeal No. 156/2016
APPELLANT:/ Smt. G. Jamuna,
ACCUSED W/o K. Nanjundamurthy,
R/at No. 15, Anugraha,
1st Floor, 6th Main Road,
Nethaji, Subhashchandra Bose
Road, R. T. Nagar,
Bengaluru-560 040.
(By Lokesh Babu M, advocate)
-Vs-
RESPONDENT :/ Sri. B. Subbaraya,
COMPLAINANT S/o Late Byanna,
Aged about 73 years,
No. 17/1, 2nd Cross,
Anjinappa Block,
Krishnamma Garden,
Benson Town Post,
Bengaluru-560 046.
(By G.B.G., Advocate)
JUDGMENT
The present criminal appeal has preferred by the appellant /accused under Section 374(3) of Cr.P.C against the Judgment dated 06.02.2013, passed by the learned 2 Crl.A. 156/2016 XVIII Addl. Chief Metropolitan Magistrate, Bengaluru in C.C.No. 14639/2013 wherein the said trial Court convicted the appellant for an offence punishable U/s.138 of Negotiable Instrument Act and sentenced him to pay a fine of Rs. 13,30,000/- and in default shall undergo simple imprisonment for one year. Out of fine amount, a sum of Rs. 13,00,000/-, shall be paid to the complainant after appeal period is over. Remaining fine amount of Rs. 30,000/- is defrayed to the State for the expenses incurred in the prosecution.
2 The factual matrix of this appeal are that, the accused and her family members are well known to the complainant and they are claimed to be relatives. The accused was in deep financial distress and to solve her immediate problems and in order to overcome the financial crisis for her financial necessity on 07.09.2010 she had borrowed a sum of Rs. 24 lakhs from the complainant. On 10.09.2010 the complainant had advanced Rs. 24 lakhs hand loan to the accused by cash. The accused promised to repay the said amount to the complainant within one year. After borrowing the accused had failed to make payment as 3 Crl.A. 156/2016 promised by her. That on 24.02.2014 the accused visited the house of the complainant and in discharge of the debt issued two cheques bearing No. 400657 dated 01.03.2013 for Rs. 11 lakhs and cheque bearing No. 400659 dated 12.03.2013 for Rs. 13 lakhs drawn on corporation Bank. When the complainant presented those cheuqes as per memo dated 19.03.2013 both the cheques returned unpaid with an endorsement "Funds Insufficient". The complainant informed dishonoured of the cheque to the accused through telephone. On 07.04.2013 the accused approached the complainant and paid part payment of Rs. 10 lakhs by cash to the wife of the complainant and collected cheque No. 400657 dated 01.03.2013 issued for Rs. 11 lakhs. The accused has admitted her liability to make payment of balance amount of Rs. 13,24,800/-. The accused had obtained signature of the wife of the complainant on a Non- judicial stamp paper and assured to pay the balance amount to the complainant. As per the instructions given by the accused, he has again presented the cheque dated 12.03.2013 issued for Rs. 13 lakhs on 15.04.2013, but as per memo dated 16.04.2013 the said cheque returned 4 Crl.A. 156/2016 unpaid with an endorsement "Funds Insufficient". After dishonour of the cheque the accused did not respond positively. Therefore, the complainant left with no alternative issued demand notice to the accused dated 04.05.2013 through registered post. The said notice returned to the complainant with an endorsement "left". The accused failed to pay the cheque amount, within the stipulated period and thereby committed an offence punishable U/s 138 of N.I. Act.
3 The accused appeared before the trial court and contested the matter. To prove the guilt of the accused, the complainant examined himself as P.W.1 and got marked the documents at Ex.P.1 to Ex.P8. The complainant examined another one witness as PW2. The accused denied the incriminating evidence on examined him under Section 313 of Cr.P.C. To substantiate his defence, the accused adduced his defence evidence as DW1 and he got marked Ex.D1. In order to prove his case, the accused examined another witness as DW2. The trial court after heard both the parties and considered the material on record the trial court has held that the accused has committed the offence 5 Crl.A. 156/2016 under Section 138 of N.I. Act and sentenced him as aforesaid.
4 Against this judgment the accused has preferred the present appeal on various grounds. The same are all herein, learned Magistrate committed grave error in law in convicting the accused. Erred in law in accepting and acting upon the evidence of PW1. Failed to observe the facts that the appellant have not provided an opportunity to cross examined the PW1 properly and also not provided an opportunity to do arguments. The complainant failed to establish the loan transaction between the accused and complainant. Failed to prove the debts and enforceable liability. There are several weakness in the evidence of PW1, the same has been over looked by the learned Magistrate. Entire evidence of complainant looked like suspicious in nature. Judgment of the Trial Court perverse, unreasonable, illegal, improper and incorrect.
5 Along with appeal memo learned Counsel for appellant have also filed an application u/s 391 of Cr.P.C. wherein he contended that cheque in question were handed over to the respondent about more than 12 years ago 6 Crl.A. 156/2016 towards to an different transaction with the wife of the respondent. In order to prove this fact Ex.D1 came to be produced by the appellant. The learned Trial Court has reasoned that the appellant has not produced either the cheque book or the bank passbook to show the said cheques were given more than 10 years back. Further contention of the appellant in his application that cheques bearing No. 400657 dated 01.03.2013 for Rs. 11 lakh and cheque bearing No. 400659 dated 12.03.2013 for Rs. 13 lakhs drawn on corporation Bank, RT Nagar. The same passbook of the appellant given to counsel of the appellant in order to produce before the Court so as to prove that as on 11.05.2010 cheqeue bearing No. 400660 was already cleared and hence the question that the appellant had issued these two cheque in the year of 2013 did not arise. For the reason known to counsel for the appellant at before the Trial Court did not produce said passbook and got marked the same on record. The same resulted in injustice to the appellant. It is particular further case of the appellant that the passbook produced along with the application is the vital document to show cheques disput 7 Crl.A. 156/2016 herein were not given to the respondent in the year 2013 towards the discharge of legal debt, the same cheques were issued very long back. The learned counsel for appellant along with application he produced one Savings bank passbook. Therefore the appellant seeks to allow the application filed u/s 391 of Cr.P.C. permit him to got marked the same Savings bank Passbook.
6 On the contrary the respondent counsel offered an lengthy objection to an application. According to respondent, the application filed by the appellant is not maintainable, same has been filed to fill up the lacuna of appellant's case which illustrated during the course of chief examination of the accused. The respondent categorically denied the contents which are urged in para No. 2 and 3 of the application, the same contents of the application is one nothing but cooked up story to file this application. The accused had already led her side evidence and widely admissions have been elicited in her cross examination. The application filed by the appellant is only to defeat the right of the complainant and to over come from the specific case of the complainant which certainly prejudice the case 8 Crl.A. 156/2016 of the complainant and certainly improves the case of the accused, same is not permissible under criminal jurisprudence. The application filed by the appellant only to defeat the case of the complainant. In the case on hand, evidence of accused, the accused had not mentioned the name of document in which he relied. The application filed by the appellant is one nothing but drag the case without limitation before the Court below. Even inspite of more opportunity that the learned Magistrate accorded to the appellant, the appellant failed to make encash such an opportunity. There is nothing remain tobe elicit from producing additional documents. No cogent or valid reasons assigned to adduce further evidence. Hence the respondent counsel seek dismissal of application along with appeal on merit.
7 After service of notice, the respondent appeared through his counsel. The Trial Court Records have been secured. Office made a note that Appeal preferred well in time.
8 Heard arguments on both sides. Perused the records.
9 Crl.A. 156/2016 9 The points that arise for my determination is:
1) Whether substantial grounds have established to allowed the additional evidence on side of appellant on his application and remand back the case to the Trial Court?
2) Whether the complainant
established that the disputed
cheque has been issued by the
accused for repayment of amount?
3) Whether the trial court has
committed any error in law or in
fact in convicting the accused?
4) What order?
10 My findings to the above point is as under:-
POINT No.1 :- In the Affirmative
POINT No.2 and 3 :- Does not survive
for the following:-
R E A SON S
11 POINT No.1:- Since the accused contented in
his application filed under section 391,CrPC that, the learned counsel for the appellant failed to produced the important document namely his bank account pass book and got marked. That I heard the appeal both on application and merits on appeal. Therefore, it is my sincere opinion that, if once application filed under section 391
10 Crl.A. 156/2016 C,r.pc filed by the accused not sustained before this court as per point No. 1, point No. 2 and 3 are herein framed survive for my further consideration, otherwise point No. 2 and 3 does not survive. As such I have taken up the case firstly upon the application filed by the accused.
12 It is main contention of the accused before this court that he has the saving pass book, the same saving pass book have not produced before the Trial court for the unavoidable circumstances. The same have not been got produced at before the trial court and got marked at the time of lead the defence evidence. As such the same account pass book is the material documents to probalize the defence of the accused. On the contrary learned counsel appeared for respondent vehemently argued the appellant with intent to dodge the proceeding the appellant is before this court with new version. Further contention the respondent counsel that the leaned trial judge properly reasoned in its judgment relating to the proposed documents. The appellant try to filled the lacuna in his defence if same permit the appellant it would cause 11 Crl.A. 156/2016 irreparable loss to the respondent. Hence, the respondent prays for dismissal of the application along with the appeal.
13 Law has settled by the Hon'ble Supreme Court of India in a case law BRIG SUKJEET SINGH (RETD) VERSUS STATE OF UTTAR PRADESH reported in Cr.Appeal-148/2019. The very relevant Para No.9 of the judgment is herein extracted.
"Additional evidence may be necessary for a variety of reasons which it is hardly proper to construe one section with the aid of observations made to do what the legislature has refrained from doing,.
Namely, to control discretion of the
appellate court to certain stated
circumstances. It may, however, be said
that additional evidence must be
necessary not because it would be
impossible to pronounce judgment but
because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause 12 Crl.A. 156/2016 prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise".
14 To chalk out the controversy between the appellant and respondent I perused the trail court record, impugned judgment and document proposed to produced by the appellant. After go through the Trail Court records it can be seen that the accused herself examined at before the trial court as DW.1 and she got confront to one document to PW1. In her examination in chief itself DW1 categorically deposed that she borrow loan at before the Smt. Shanthamma to a tune of Rs.10 lakhs and no loan transaction between the appellant and respondent at any point of time. Further, DW.1 deposed that on 7.4.2013 wife of the complainant/respondent Smt. Shanthamma executed Ex.D.1 document in favour of DW.1. As per Ex.D.1 document all the cheques belong to the appellant left at the possession of Smt. Shanthamma have been 13 Crl.A. 156/2016 returned. No doubt no where in the chief examination of DW.1. DW.1 have not stated that she already paid the entire loan amount to the Smt. Shanthamma. But after go through cross examination of PW.2. PW.2 in her cross examination deposed that the accused have paid the amount of Rs.10 lakhs but PW.2 do not remember the date in which the accused have paid. Further, the accused got confronted Ex.D.1 document to PW.1, as the PW.1 got identified the signature of his wife Smt. Shanthamma as per Ex.D.1(a). It is pertinent to note here that PW.2 here in Shanthamma who she none other than the wife of the Respondent/complainant. At this circumstances I also perused Ex.D.1 documents. The contents available in Ex.D.1 documents is herein extracted.
" On this day 7 th April 2013, I received Rs.10 lakhs in cash towards the total amount Rs.23,24,800/- payable to us by Smt. Jamuna as on this date. The balance of amount of Rs.13,24,800/- due shall be paid to us as and when Naveen Kumar pays the dues pending to Smt.Jamuna all the cheques hare with I am handing over today and I have no cheues of Smt.Jamuna with me".
14 Crl.A. 156/2016 15 It is particular case of the appellant that the appellant had given the passbook to her counsel in order to produce the same before the court so as to prove that as on 11.5.2010 cheque bearing No.400660 was already cleared and hence the question that appellant had issued the Ex.P.1 cheque in the year 2013 did not arise. The same pass book not yet to be produced and got marked in his favour.
16 Further, it also necessary to read the impugned judgment in an particular portion available at para No.11 of the impugned judgment. The same portion is hereby extracted.
"The details of the cheques presented by the complainant pertaining to the accused reflects in her Bank account extract and passbook. Therefore, the accused has deliberately withheld those documents from producing before the Court. The evidence of DW.1 that she did not verify her passbook or Bank account extract is also unbelievable".
From reading of these relevant portion of judgment it can seen that, the learned Trial Judge give his reason that, 15 Crl.A. 156/2016 the appellant deliberately withheld those documents that is bank account extract and passbook. The avernments of the application also that the appellant have gave her passbook to her earlier counsel. For the reason best known to her counsel the same document not yet brought on the record. It is pertinent to note here that the application U/s 391 Cr.P.C filed by the appellant/accused and not by the Respondent/ complainant. As such the question of filled up the lacuna does not arise. As the accused have more defence and more stand to disprove the allegation of the complainant. Further, the appellant filed an application seeks permission to production of document. There are Three limbs available under Section 162 of Indian Evidence Act one is production of document, admissibility of the document and appreciation of the document are the major three steps. When law available in that of the manner it certainly the Respondent/complainant have more option to cross examine the DW.1 if once proposed document got marked on record. Even that circumstance also the respondent can establish his case how that proposed document not more significant to decide controversy 16 Crl.A. 156/2016 between the parties. When collectively read the contents of application filed under 391 of Cr.P.C along with cross examination portion of PW.1 and PW.2. that the application filed under 391 of Cr.P.C by the appellant is established primafacia on its face.
17 No doubt, the present appeal is one with more old case and if return the case record for fresh disposal certainly it would consume some sort of time. On the other hand consider an opportunity sought by the appellant also paramount duty cost on this court. If any of the apprehension, as contended by the respondent that, the appellant may be dodged the proceeding and not to co operate at before the Trail Court for early disposal of the case same may be exchecked by imposed certain conditions. With these observation and as per the law held in BRIG SUKJEET SINGH (RETD) VERSUS STATE OF UTTAR PRADHES AND OTHERS I answered the point No.1 as affirmative. In view of I answered the point No.1 in affirmative, point No.2 and 3 not arise for my consideration.
OR D E R The Application filed under Section 391 Cr.P.C is hereby allowed 17 Crl.A. 156/2016 with subject to cost of Rs.3000/-.
Consequently, Criminal Appeal filed under Section 374(3) of Cr.P.C. is also hereby allowed. The Judgment and sentence passed by the trial court in CC No. 14639/2013 dated 06.02.2016 is hereby set aside and order to remand for fresh disposal, subject to following conditions;
1. The parties shall appear before the trial court after receipt of copy of this judgment without waiting for any process of the trial court.
That too parties shall appear within One week from the date of availability of copies.
2. That it hereby direct the Trial Court take up the case record from the stage of further chief examination of the DW.1 and shall permit the accused to mark her saving bank passbook, Corporation Bank as additional documents. The document issued by the Corporation Bank, 656 Bangalore, R.T. Nagar Branch No.75, 14 th Cross, 1 st Block, R.T. Nagar, Bangalore.
18 Crl.A. 156/2016
3. The trial court shall adjudicate the case on day to day basis that too shall make an all endevour to disposal of the case file within Two months from the date of receipt of this order without influencing of this court order.
4. Office is hereby directed to send the record immediately to the Trial Court.
(Dictated to the Stenographer, transcribed and typed by her and then corrected and pronounced by me in the open court on this the 15 th day of November, 2021).
(R. ONKARAPPA) XII Addl. C.C. & Sessions Judge, BANGALORE CITY.
19 Crl.A. 156/2016 15.08.2021 Judgment pronounced in the open court vide separate judgment.
OR D E R The Application filed under Section 391 Cr.P.C is hereby allowed with subject to cost of Rs.3000/-. Consequently, Criminal Appeal filed under Section 374(3) of Cr.P.C. is also hereby allowed. The Judgment and sentence passed by the trial court in CC No. 14639/2013 dated 06.02.2017 is hereby set aside and order to remand for fresh disposal, subject to following conditions;
1. The parties shall appear before the trial court after receipt of copy of this judgment without waiting for any process of the trial court. That too parties shall appear within One week from the date of availability of copies.
20 Crl.A. 156/2016
2. That it hereby direct the Trial Court take up the case record from the stage of further chief examination of the DW.1 and shall permit the accused to mark her saving bank passbook, Corporation Bank as additional documents. The document issued by the Corporation Bank, 656 Bangalore, R.T. Nagar Branch No.75, 14 th Cross, 1 st Block, R.T. Nagar, Bangalore.
3. The trial court shall adjudicate the case on day to day basis that too shall make an all endevour to disposal of the case file within Two months from the date of receipt of this order without influencing of this court order.
5. Office is hereby directed to send the record immediately to the Trial Court.
LXII Addl. C.C. & Sessions Judge, BANGALORE CITY.