Accused: Anand Jindal vs Anand Jindal on 20 March, 2021

[Cites 18, Cited by 0]

Bangalore District Court

Accused: Anand Jindal vs Anand Jindal on 20 March, 2021

 IN THE COURT OF LXXIII ADDL.CITY CIVIL & SESSIONS
    JUDGE, MAYOHALL UNIT, BANGALURU. (CCH.74)

                       PRESENT:
       Sri.Yamanappa Bammanagi, B.A., LL.B., (Spl.,)
         LXXIII Addl.City Civil & Sessions Judge,
              Mayohall Unit, Bangaluru.

         Dated this the 20th day of March, 2021.

               Crl. Appeal No.25194/2018

Appellant/
Accused:              Anand Jindal,
                      206, 2nd Floor,
                      Tagore Park,
                      Near Model Town,
                      Delhi 110009.

                      Also at
                      D9/13, 2nd Floor,
                      Model Town3,
                      Delhi110009.

                      (By Sri.Shahbaaz Husain - Adv.)

                           V/S

Respondent/
Complainant:          Ankit Manglik,
                      R/o Flat No.C77,
                      Diamond District,
                      Old Airport Road,
                                  2
                                             Crl.A. No.25194/2018


                        Bangaluru 560008.

                        (By Sri.Pradeep Nayak - Adv.)

                         JUDGMENT

Being aggrieved by the judgment and sentence, passed by the learned LVII ACMM, Bangaluru, in CC No.50531/2016, dated 01.09.2018, convicting the appellant for the offence punishable under Section 138 of N.I.Act, sentencing him to pay fine of Rs.500/, in default of payment of fine amount, the accused shall undergo simple imprisonment for 3 months. Further directed the appellant to pay compensation of Rs.17,22,000/ to the complainant, in default of payment of compensation amount, the accused shall undergo simple imprisonment of a period of one year, being aggrieved by the said order, the appellant is before this court, challenging the legality and correctness of judgment and sentence of trial court.

2. Brief facts of the case:

Crl.A. No.25194/2018 It is the case of the appellant that, the present respondent has filed complaint against the present appellant u/S 200 of Cr.P.C. for the offence punishable u/S 138 of the N.I. Act. It is alleged in the complaint that, the accused has approached the complainant through one Arun Kumar Jain in the month of September 2012, requested the complainant for financial help of Rs.10,00,000/ for his business purpose.

The accused and the complainant both agreed that said loan amount shall be paid after completion of 18 months with 18% interest per annum. On request of the accused the complainant had advanced loan of Rs.10,00,000/ to the accused through cheque No.816864 dated 1.10.2012, drawn on Citi Bank, NA, Bangaluru. The accused has executed promissory note and receipt dated 1.10.2012 and acknowledged the debt of Rs.10,00,000/. After completion of 18 months the complainant has demanded the accused through said Arun Kumar for repayment of loan amount. On 4 Crl.A. No.25194/2018 repeated request, the accused has issued cheque bearing No.792265 dated 19.8.2014 for sum of Rs.10,00,000/, drawn on Karanataka Bank Limited, West Patel Nagar Branch, Delhi, and assured that interest amount will be paid shortly. The complainant has presented the said cheque for encashment through his banker HDFC Bank Limited, Ansals Fortune Arcade, KBlock, Sector18, Noida(UP), but said cheque returned with a bank endorsement dated 22.8.2014 'Insufficient Fund'. Thus, the cheque issued by the accused was dishonoured, the fact of dishonour of cheque was brought the notice of the accused and requested to pay cheque amount, but accused did not heed the request of the complainant, hence, complainant got issued notice to the accused on 4.9.2014 calling upon him to pay the cheque amount within 15 days from the date of receipt of the notice, same was served on the accused, even after receipt of the notice the accused failed to pay the cheque amount, after 15 5 Crl.A. No.25194/2018 days from the date of receipt of the notice, the accused has filed complaint against the present appellant for the offence punishable u/S 138 of N.I. Act.

3. On being satisfied with the material placed before it, the trial court has taken cognizance for the offence punishable u/S 138 of the N.I. Act, issued summons u/S 204 of Cr.P.C. In pursuance of the summons, the accused has appeared before the trial court, the trial court enlarged the accused on bail, thereafter, plea was recorded, the accused pleaded not guilty and claimed to be tried.

4. In order to prove his case the complainant was examined as C.W.1 and got marked Ex.C.W.1A to C.W.1F, on 30.08.2017 statement of accused was recorded U/sec. 313 of Cr.P.C., the learned counsel for the accused has cross examined CW1. Thereafter, the accused was examined himself as D.W.1 and one Arun Kumar Jain is examined as D.W.2 and no documents are marked on behalf of the 6 Crl.A. No.25194/2018 accused. D.W.1 and D.W.2 were cross examined by the learned counsel for complainant. After hearing the argument of the learned counsel for the complainant and accused, the trial court has recorded the order of conviction, convicting the appellant/accused for the offence punishable u/S 138 of the N.I. Act, with default clause. Being aggrieved by the said judgment and order of conviction, the accused is before this court, challenging the correctness and legality of the said judgment, order of conviction on the following: "GROUNDS I. The impugned judgment of the trial court is erroneous, arbitrary, illegal and bad in law, hence, liable to be set aside as it was passed without application of mind.

II. The trial court failed to considered the contradiction and defence put forth by the accused and the argument of the learned counsel for the accused was not considered by the trial court and 7 Crl.A. No.25194/2018 decision relied on by the accused were not considered by the trial court.

III. The complainant himself admitted in the crossexamination that he did not know the accused.

This fact is not considered by the trial court. The trial court failed to considered the fact that complainant failed to produce original promissory note, but produced photocopy of promissory note. But, the accused has undertaken to produce the original promissory note, but not produced.

IV. The trial court further failed to considered the fact that complainant failed to prove the existence of legally recoverable debt or any liability as there was a lock period of 18 months, after the loan.

Thus, at the time of issuance of cheque there was no legally recoverable debt.

Crl.A. No.25194/2018 V. The trial court did not considered the fact that the complainant has not proved the source of income to lend such a huge amount of Rs.10,00,000/ to the accused. Thus the trial court has passed the judgment without considering the material evidence placed before it by the parties and impugned judgment is liable to be set aside."

5. On admitting the appeal, this court has passed the order, on the application filed by the appellant u/S 389 (1) of Cr.P.C., and suspended the operation and execution of the trial court order and issued notice to the respondent. The respondent appeared through counsel and received TCR, heard argument on both side. The learned counsel for the respondent has submitted his argument. The learned counsel for the appellant relied on the decisions reported in: 9

Crl.A. No.25194/2018

1. Crl Appl No.1534/2017 in the case of N.Harihara Krishnan v/s J.Thomas.

2. 2016(10) SCC 458 in the case of Sampelly Satyanarayana Rao v/s India Renewable Energy Development Agency.

3. Crl Appl No.425/2010 Branch Manager v/s Suresh Das.

The learned counsel for the respondent relied on the decisions reported in:

1. (2009)2 SCC 513 in case of Kumar Exports v/s Sharma Carpets.

2. 2018 SCC Online SC 651 in case of Kishan Rao v/s Shankaragouda.

3. (2001) 8 SCC 458 in case of K.N.Beena v/s Muniyappan.

4. 2006 SCC OnLine Kar 314 in case of Umaswamy v/s K.N.Ramanath.

Crl.A. No.25194/2018

5. 2016 SCC OnLine Ker 18331 in case of K.N.Sivadas v/s K.U.Abdul Majeed.

6. I have perused impugned judgment and order of the trial court, reappreciated oral and documentary evidence, led by both the parties before the trial court, considered material placed before the court, considered the arguments of the learned counsel for the appellant and respondent. On perusal of the same, the points that would arise for my consideration are as follows:

1. Whether the complainant discharged initial burden to have benefit of Section 139 of N.I. Act?

2. Whether complainant proved the legally recoverable debt and the accused issued cheque towards payment of said debt?

3. Whether the complainant proved that he has financial capacity to lend such huge amount of Rs.10,00,000/ to the accused?

Crl.A. No.25194/2018

4. Whether the accused has rebutted the presumption on basis of preponderance of probability?

5. Whether the appellant/ accused made out grounds to show that the order of conviction and sentence recorded by the trial court, in C.C. No.50531/2016, dated 01.09.2018, is deserves to be setaside and call for the interference of this court?

6. What order?

7. My answer to the above points are as follows: Point No.1: In the Affirmative, Point No.2: In the Affirmative, Point No.3: In the Affirmative, Point No.4: In the Negative, Point No.5: In the Negative, Point No.6: As per final order, for the following: REASONS 12 Crl.A. No.25194/2018

8. POINT Nos.1 to 3: These three points are interconnected to each other, in order to avoid repetition, I proposed to answer these three points commonly. The rank of the parties is referred as they were referred before the trial court.

It is the case of the complainant that, in the month of September 2012, the accused had approached the complainant through one Mr.Arun Kumar and requested the complainant for financial help of Rs.10,00,000/, on the request the complainant has advanced the loan of Rs.10,00,000/ to the accused through cheque, it was also agreed that, loan amount shall be repaid by the accused only after 18 months with 18% interest per annum, the accused has executed promissory note and aknowledgement for having received the said loan, after taking loan, after completion of 18 months, the accused failed to repay the said amount. Thus, the complainant got issued legal notice, 13 Crl.A. No.25194/2018 same was served, even after service of notice the accused failed to repay the said loan, hence, the complainant has filed the complaint against the accused for the offence punishable u/S 138 of the N.I. Act.

9. In support of his case, the complainant has produced as many as 6 documents, which have been marked at Ex.C.W.1A to C.W.1F. The accused got examined himself as D.W.1 and got examined one Arun Kumar Jain as D.W.2.

I have perused oral and documentary evidence led by both the parties and reappreciated the same, considered the material placed before the court and considered the arguments advanced by the learned counsel for the parties including written argument submitted by the learned counsel for the parties. On perusal of the same, the defence of the accused is that, the accused person is not known to the complainant, the complainant failed to prove the existence of 14 Crl.A. No.25194/2018 legally recoverable debt, failed to prove that, the accused has issued cheque towardsd payment of legally recoverable debt, the complainant failed to prove his financial capacity to lend such huge amount of Rs.10,00,000/. Further the accused taken ground in the appeal that, the accused has repaid the loan amount.

10. In order to answer these points and the defence taken by the accused, it is necessary to reappreciate oral and documentary evidence led by both the parties.

11. The complainant has produced Ex.C.W.1A to C.W.1F. Ex.C.W.1A is the promissory note, Ex.C.W.1B is the original cheque, which bears signature of accused, Ex.C.W.1C is the bank memo, which reflects the reasons for dishonour of cheque, Ex.C.W.1D is the legal notice issued by the complainant through RPAD, Ex.C.W.1E are two postal receipts and Ex.C.W.1F are the two postal tracks. 15

Crl.A. No.25194/2018 It is relevant to appreciate crossexamination of D.W.1 and D.W.2. On careful perusal of oral evidence of the accused D.W.1 and D.W.2, it is clear that, there was transaction between the accused and the complainant. It is also clear from the evidence of D.W.1 and D.W.2 that, all transaction taken place between the accused and the complainant in the presence of the D.W.2 Arun Kumar. The chiefexamination of D.W.1 at first para dated 22.01.2018 reads thus:

"I know one Arun Kumar Jain since 22 years and he is my friend. I used to take and repay the loans from said Arun Kumar Jain since long times. While borrowing the loan I used to give signed blank cheque to him for security purpose. Even said Arun Kumar used to take signed blank signed promissory notes. I have taken loan from said Arun Kumar Jain several times. I have repaid 70 to 80% of loan amount to 16 Crl.A. No.25194/2018 the said Arun Kumar Jain by way of cash."

But, the accused deposed that he do not know the complainant. Now it is relevant to appreciate the evidence of D.W.2, who is material witness to the transaction. D.W.2 deposed that, he is doing money lending business for the last 30 years and he knows the accused for the last 25 years. As it could be seen from the evidence of D.W.1 extracted supra that there was money transaction between the accused and D.W.2.

D.W.2 further deposed that the accused had asked D.W.2 for arranging some money, as he was need of money for his business. On account of which, D.W.2 secured cheque of Rs.10,00,000/ from Mr.Kapilesh Manglik and handed over to the accused. The said Mr.Kapilesh Manglik is none other than the father of the complainant. Now from this undisputed fact it is clear that, cheque for Rs.10,00,000/ 17 Crl.A. No.25194/2018 belongs to the complainant has been handed over to the accused through D.W.2 Arun Kumar Jain.

12. Now it is also necessary to appreciate the evidence of D.W.2, which reads thus:

"3. I state that Mr.Anand Jindal had asked for arranging some money as he was in need for his business.

4. I state that I secured a cheque of Rs.10,00,000/ from Mr.Kapilesh Manglik, and handed over the same to Mr.Anand Jindal, for encashment.

5. I state that I know Kapilesh Manglik for more than 40 years and he is my friend and a relative.

6. I state that Mr.Anand Jindal had executed a Promissory Note in the year 2012 towards the above said amount.

7. I state that the above said amount is due to be paid on 18 Crl.A. No.25194/2018 demand by the complainant and not before that.

8. I state that this is fit case for settlement between the parties and I believe subject to the permission and aid of the court, I can settle the matter amicably between the parties."

D.W.2 deposed in the chiefexamination itself at para6 that, the accused Mr.Anand Jindal had executed a promissory note in the year 2012 towards the above said amount. This deposition of D.W.2 was not denied by the accused, though D.W.2 got examined by the accused. But accused did not treat this as hostile not crossexamined by the accused. Even the accused denied this deposition with permission of the court to treating the witness hostile. Further it is relevant to appreciate the chiefexamination of D.W.2 at para7, unchallenged deposition, D.W.2 deposed that the said 19 Crl.A. No.25194/2018 amount is due and to be paid on demand made by the complianant after completion of 18 months.

13. Now it is relevant to extract cross of D.W.2 dated 13.07.2018, which reads thus:

"I know the complainant who is present in the court and he is the son of my friend Kapilesh Manglik. It is true that in my evidence affidavit at para No.8 I have stated that it is a fit case for settlement between the parties. According to me parties means complainant and accused. I have introduced the father of the complainant to the accused. According to my evidence affidavit I have stated that cheque of Rs.10 lakhs from Kapilesh Manglik handed to the Anand Jindal, the said cheque is drawn on the account of complainant. The complainant approached me several times to ask the accused to return the loan amount to him. It is true 20 Crl.A. No.25194/2018 that I have communicated the said fact to the accused."

On careful appreciation evidence of D.W.2, which is not disputed by the complainant and the accused, that the transaction between the complainant and the accused took place in the presence of the D.W.2, who's evidence is not disputed. The D.W.2 got examined by the accused himself , it is also clear from the evidence of D.W.2, that the complainant has issued cheque for sum of Rs.10,00,000/ same has been handed over to the accused. It is also not in dispute that, the accused was under need of money and whenever the accused was under need of money, the accused used to take the help of D.W.2 and get loans. This fact is also not in dispute.

14. Now it is relevant to appreciate Ex.C.W.1C, Bank Slip, which clearly shows that the cheque was presented by the complainant, same was belongs to account maintained by the accused, which was dishonoured for want of sufficient 21 Crl.A. No.25194/2018 fund in the account maintained by the accused. Ex.C.W.1C Bank Slip has got presumptive value u/S 146 of the N.I. Act. Nothing has been brought before the court by the accused to rebut the presumption u/S 146 of the N.I. Act.

15. It is also relevant to extract unchallenged and undisputed evidence of D.W.2 to prove the fact of execution of promissory note. The cross of D.W.2 dated 13.07.2018, which reads thus:

"The promissory note referred in my eivdence affidavit in para 6 is the promissory note now shown to me and that has been marked as Ex.CW1A."

This clearly shows that, the accused has executed promissory note for the said loan of Rs.10,00,000/. The said promissory note has got presumptive value u/S 118 of the N.I. Act. Except denied nothing has been elicited from the cross of P.W.1.

Crl.A. No.25194/2018 The specific defence of the accused is that, he has issued blank signed cheque in favour of Arun Kumar; i.e., D.W.2. But, there is no case that there was due of any loan to be paid to D.W.2. Even D.W.2 did not deposed that the accused has issued cheque to D.W.2 to pay legally recoverable debt. In the absence of proof of due to D.W.2, it cannot be accepted the defence of the accused that he has issued cheque to D.W.2 when D.W.2 himself silence on the due. On careful perusal of the evidence of D.W.2, which is not denied by both the accused and the complainant, it is clear that, the complainant has satisfied the requirement of Section 138 of the N.I. Act and the complainant is entitle to have benefit under Section 118 & 139 of the N.I. Act.

16. Thus, it is clear that, the complainant has discharged his initial burden, and proved that, there was due of Rs.10,00,000/ to be paid by the accused to the complainant, in order to repay the same, the accused has 23 Crl.A. No.25194/2018 issued cheque, same was dishonoured, the complainant complied with requirement of Section 138 of N.I. Act and the accused failed to rebut the presumption.

17. Thus, the accused has taken defence of issuing blank singed cheque and not disputed the signature on the cheque. Under such circumstances, it can be safely held that, as per Section 20 of the N.I. Act, accused cannot escape from the liability. Thus, the complainant has proved the offences committed by the accused. Hence, I answer point Nos.1 to 3 in the Affirmative.

18. POINT Nos.4 & 5:These two points are interconnected to each order, in order to avoid repetition, I proposed to answer these two points commonly. On perusal of the material placed before the court no effective cross examination has been made by the learned counsel for the accused to rebut the presumption even on basis of preponderance of probability.

Crl.A. No.25194/2018

19. The accused himself examined D.W.2, who has clearly deposed about the existence of legally recoverable debt, issue of cheque. On careful perusal of the chief examination of D.W.2 itself clear that, the accused failed to rebut the presumption on basis of preponderance of probability. Thus, there is no material to show that, the accused has rebutted the presumption. Evidence of D.W.2 sufficient to hold that the accused failed to rebut the presumption.

20. On being satisfied with the above documents, the trial court has issued summons to the accused U/sec.204 of Cr.P.C. Hence, this court finds no error in the trial court judgment.

21. On perusal of the oral and documentary evidence led by the complainant and accused, it is clear that, the accused has issued cheque towards discharge of liability, same was dishonoured due to insufficient fund in the account 25 Crl.A. No.25194/2018 maintained by the accused. Further it is clear from the material placed before the court that, accused has admitted the issuance of cheque, signature on the cheque.

22. When issuance of cheque Ex.P.1 and signature on it is not in dispute, then the complainant is entitle to have shelter U/sec.118 and 139 of the N.I. Act as held in the decision reported in (2010) 11 SCC 441 in case of Rangappa v/s Sri.Mohan. The Hon'ble Apex Court has held thus:

"Once issuance of cheque and signature thereon are admitted, the presumption of legally enforceable debt in favour of the holder of the cheque arises. It is for the accused to rebut the said presumption.

Though accused need not adduced his own evidence and can rely upon the materials submitted by the complainant. However, mere statement of the accused may not be 26 Crl.A. No.25194/2018 sufficient to rebut the said presumption."

So, on perusal of the oral and documentary evidence of the complainant and accused it is clear that it is a fit case to avail the provision of Section 118 and 139 of the N.I. Act. Further accused has taken contention that he has issued blank cheque and and said blank cheque has been misused by the complainant by filing the false complaint. When the issuance of cheque is admitted, then accused cannot escape from the liability by saying that he has issued blank cheque unless cogent evidence placed before the court about the misuse of the blank cheque. I have perused the cross of the complainant, nothing has been elicited from the cross of P.W.1 to disbelieve the case of the complainant.

23. On careful scrutiny of oral and documentary evidence, it is clear that except mere denial of the evidence of P.W.1 and the documents produced by the complainant there 27 Crl.A. No.25194/2018 is no specific denial and no specific case has been made out by the accused to rebut the presumption u/S 139 and 118 of the N.I. Act. So, on perusal of the material placed before the court, perusal of judgment of the trial court, I am of the opinion that trial court committed no error in recording of conviction.

24. I have perused the documentary and oral evidence, led by both the parties and material placed before the court, it is clear that, trial court has recorded the plea by framing accusation made against the accused and read over to the accused in the language known to him, accused not plead guilty and claimed to be tried. I have perused the plea recorded by the trial court and it is clearly shows that, the trial court has recorded the plea properly. I have carefully perused the documentary as well as oral evidence and I have reappreciated the same. On perusal of the same I am of the opinion that, trial court has rightly come to conclusion that, 28 Crl.A. No.25194/2018 the appellant/accused has committed offence u/S. 138 of the N.I. Act.

25. I have gone through the reasonings given by the trial court for awarding the compensation u/s 357 of Cr.P.C. On going through the same, it is clear that trial court has considered the facts and circumstances of the case and awarded the compensation to the complainant. On perusal of the observation made, reasoning assigned by the trial court, for awarding the compensation, I am of the opinion that the trial court has awarded the compensation in accordance with the principle laid down by the Hon'ble Apex Court in the decision reported in (1988) 4 SCC 551 in case of Hari Singh v/s Sukbhir Singh.

The lordships have held that; power given to the court to direct for payment of compensation is intended to do something for the victim. The provision was held to be a step forward in our criminal justice system. The lordships have 29 Crl.A. No.25194/2018 made the observation in the said decision at para No.10, which reads thus;

"It empowers the court to award compensation to victim while passing judgment of conviction, in addition to conviction, the court may order the accused to pay some amount by way of compensation to the victim who has suffered by the action of accused. It may be noted that this power of courts to award compensation is not a ancillary to other sentence but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We therefore, recommend to all courts 30 Crl.A. No.25194/2018 to exercise this power liberally, so as to meet the ends of justice in a better way."

26. Further the learned counsel for the complainant brought the notice of the court while arguing orally, that principle laid down by the Hon'ble High Court, in the decision reported in 2005 (1) KLT 478 in case of General Auto Sales v/s Vijayalakshmi, and submitted that in the said decision the lordship have held that even blank cheque issued for discharge of liability or as a security, under such circumstances also the liability subsists and same is presented to the bank for encashment, the person who had drawn the cheque cannot escape from the liability fixed u/s 138 of N.I. Act. Hence, accused/appellant is not entitle to have shelter under the law laid down in the decisions relied on by the learned counsel for the appellant.

Crl.A. No.25194/2018

27. Hence, on going through all the circumstances of the case, I am of the opinion that, the trial court has considered the admitted facts and oral and documentary evidence, led by both the parties, with reference to fact in dispute. Hence, I hold that the trial court rightly hold the guilty of the accused of offence punishable u/s 138 of N.I. Act. With these reasons, conviction order, recorded by the trial court is confirmed, and does not warranted the interference of this court. Hence, I answer points No.4 & 5 in the Negative.

28. POINT No.6: In view of the discussion made on point Nos.1 to 5, I proceed to pass the following:

ORDER Acting u/S 386 of Cr.P.C.

the appeal preferred by the appellant/accused is hereby dismissed.

Crl.A. No.25194/2018 Consequently, the judgment and order of conviction and sentence, dated 01092018, passed by learned LVII ACMM, Mayohall Unit, Bangaluru, in CC No.50531/2016, is hereby confirmed.

The suspension order, dated 02.11.2018, passed by this court, on the application filed u/S 389 (1) of Cr.P.C. stands canceled.

No order as to costs.

Office is directed to send TCR to the trial court with copy of the judgment.

(Dictated to the Stenographer, on computer, after computerization, corrected and pronounced by me in the Open Court, this the 20th day of March, 2021) (Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, B'luru.(CCH74) 33 Crl.A. No.25194/2018 34 Crl.A. No.25194/2018

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Accused: Anand Jindal vs Anand Jindal on 20 March, 2021