Bangalore District Court
Sri. Jayasimha. K. S vs Sri. Krishnamurthy D on 21 April, 2022
KABC010297162016
Presented on : 19-12-2016
Registered on : 19-12-2016
Decided on : 21-04-2022
Duration : 5 years 3 months 13 days
IN THE COURT OF LXV ADDL CITY CIVIL AND SESSIONS
JUDGE; BANGALORE CITY
PRESENT
SRI. SUBHASH SANKAD
B.A., LL.M.
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 21 st day of April, 2022
CRL.A.No.1499/2016
APPELLANT/S:- SRI. JAYASIMHA. K. S.,
s/o late K.V. Samptha,
Aged about 58 years,
R/at No.286, Road No.8,
'Champakadhama Manjesha',
Golden Jubilee Enclave,
Defence Layout,
Vidyaranyapura Post,
Bengaluru -560097.
(By Sri. AP., Advocate)
V/s.
RESPONDENT/S:- SRI. KRISHNAMURTHY D.
GODAKINDI
s/o late Dattathreya Road,
Aged about 68 years,
R/at No.61, Road No.2,
Defence Layout,
2
Crl.A.No.1499/2016
Vidyaranyapura,
Bengaluru-560097.
(By Sri. DP., Advocate)
JUDGMENT
This appeal is filed by the appellant under Section 374(3) of Cr.P.C., seeking to set aside the judgment of conviction and sentence passed by the XVIII Additional Chief Metropolitan Magistrate, Bengaluru, in CC.No.33383/2014 dated 23.11.2016.
2. The appellant the accused and the respondent is the complainant before the trial Court, for the sake of convenience parties are referred by their ranks before the trial Court.
3. The facts of the case are as follows.-
The complainant has stated that the accused is known to him since several years. In the month of February, 2012 the accused borrowed a sum of Rs.1,00,000/- from the complainant by way of cash as hand loan for his urgent needs with a promise to repay the said amount within a month. Again in the month of May, 2012 the accused approached and requested him to arrange some amount about 5 to 6 lakhs to fulfill his commitments and assured to repay the same within 10 to 12 months. Considering the needs of the accused the complainant paid a sum of Rs.1,00,000/- on 15.05.2012, Rs.1,50,000/- on 14.06.2012, Rs.1,00,000/- on 21.06.2012, Rs.1,00,000/- on 10.10.2012 and Rs.1,00,000/- on 22.11.2012 total of Rs.5,50,000/- to the accused. After lapse of one year the complainant demanded to repay the said loan amount at that time the accused had issued cheques bearing No.091664 dated 15.09.201 for Rs.1,50,000/-, No.839279 dated 20.09.2014 for Rs.1,00,000/- in favour of the 3 Crl.A.No.1499/2016 complainant. The complainant presented the said cheques for encashment and the same were returned with endorsement 'funds insufficient'. The fact of dishonor of cheques was informed to the accused, since the accused did not make the payment, the complainant got issued demand notice calling upon the accused to make payment within 15 days. Since the accused did not make payment. Hence, the complainant has filed the complaint.
4. The trial court took cognizance of offence and issued summons to accused. The accused appeared through his counsel and defended the case. The trial court recorded the plea of accusation. The accused pleaded not guilty of the accusation levelled against him and claimed to be tried. Hence, the case was posted for trial.
5. To prove his case, the complainant was examined as PW1 and got marked the documents as Ex.P1 to Ex.P18. After completion of the evidence, the trial court examined the accused as required under Section 313 of Cr.P.C. The accused denied the incrementing evidence appearing against him, and he has chosen to adduce evidence. The accused was examined as DW1 and got marked the documents as Ex.D1 to Ex.D19 and two more witnesses are examined as DW2 and DW3. After hearing both side, the trial court passed the judgment, convicting the accused and sentenced him to pay a fine of Rs.3,30,000/-.
6. Being aggrieved by the order of conviction and sentence, the appellant-accused has filed the present appeal challenging the impugned judgment on various grounds.
7. The notice was issued to the respondent/ complainant. The respondent/ complainant appeared through his counsel and contested the case. The trial court records were secured. At the 4 Crl.A.No.1499/2016 stage of argument the appellant has filed application under Section 391 of Cr.P.C., seeking permission to adduce additional evidence. The said application came to be allowed on submission of no objection by the counsel for respondent/ complainant. Thereafter, the case was remanded to trial court for recording of additional evidence. Since the appellant did not co-operate before the trial court. Again the records were forwarded to this court. Since the application was allowed, the additional evidence of accused / DW1 was recorded before this court. In his additional evidence the accused has produced the documents as per Ex.D22 to Ex.D43. The counsel for appellant has filed written argument. I have heard the oral argument of both sides and perused the records. The counsel for appellant has reproduced the contents of written argument in his oral argument.
8. Now the points that points arise for my consideration are.-
1. Whether the complainant has placed sufficient material to draw initial presumption in his favour?
2. Whether the appellant has rebutted the presumption available to the complainant under Section 139 of the Negotiable Instrument Act?
3 Whether the judgment of conviction and sentence passed by the XVIII Additional Chief Metropolitan Magistrate, Bengaluru, in CC.No.33383/2014 dated 23.11.2016 is erroneous, and same needs to be interference by this court?
4. Whether the appeal deserves to be allowed?
5. What Order?
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9. My findings on the above points are:-
Point No.1:- In the Affirmative
Point No.2:- In the Negative
Point No.3:- In the Negative
Point No.4:- In the Negative
Point No.5:- As per the final order
for the following
REASONS
10. Point No.1 :- The sum and substance of the written argument submitted by the counsel for appellant is that in the cross- examination the respondent/ complainant has admitted certain facts. During the cross-examination the appellant / accused elicited the truth. In the said cross-examination the complainant has admitted that he is a retired employee of KPC and he was retired in the year 2003 itself. After retirement he is not indulged in any work and further admitted that appellant/ accused was known to him from the year 2007. The complainant has further admitted that the appellant was president of Shakthi Ganapathi Temple Trust of Vidyaranyapura and the respondent was Treasurer and presently he is the president of the Trust. He has further admitted that the appellant/ accused is a Scientist in DRDO and the appellant wife is working in Railway department. He has admitted that when he was a Treasurer the appellant was President of Shakthi Ganapathi Temple Trust, there was monetary transactions between them. He has further admitted that he has not received any other documents for lending hand loan on 5 different occasions and further admitted that at the time of lending hand loan and receiving the cheques marked at Ex.P1 & 2, except the appellant and respondent no other person was present.
6Crl.A.No.1499/2016 He has further admitted that he was not having enough money to lend Rs.5,50,000/- at one time to the accused/ appellant. He has further admitted that a criminal case is registered in Crime No.357/2015, for having thefted the cheques was pending adjudication before IV Additional Chief Metropolitan Magistrate Court against the respondent and others. He has further admitted that he has initiated another private complaint in CC.No.33363/2014 for Rs.3,00,000/- before the XIII Additional Chief Metropolitan Magistrate, Bengaluru on the same grounds and facts against the appellant by furnishing another two cheques belongs to Corporation Bank, Malleshwaram Branch, Bengaluru. He further admits that there is a difference in the handwriting and ink with respect to date and other details filed in Ex.P1 and Ex.P2. He further admits that he has not assessed the income tax returns for having possession to a sum of Rs.5,50,000/- in cash.
11. It is further argument of the appellant that the complainant has utterly failed to prove beyond reasonable doubt the existence of legally recoverable debt with the accused. The complainant has not produced any loan agreement or any document to prove his source of income for lending such a huge money by way of cash after his retirement from KPC. It is further argued that the accused is working as Scientist in a DRDO and during his ill-health he was traveling in Auto rickshaw one Madhuprasad. Said Madhuprasad stolen the cheques. Madhuprasad and others have circulated among other persons, in this regard the accused has filed a private complaint in PCR No.9653/2015 before the IV Additional Chief Metropolitan Magistrate, Bengaluru and the FIR was registered in Crime 357/2015 on 30.08.2015 for the alleged offence under Section 34, 504, 506(B), 7 Crl.A.No.1499/2016 420, 120B, 379 of IPC. The documentary evidence produced by the accused clearly goes to show that there is no financial transaction between the complainant and the accused. The accused has produced the bank passbook to show that he was having a sum of Rs.60 to 65 lakhs in the said bank account at that point of time from the sale of his residential property. The complainant and other persons have conspired and misused the stolen cheques by Madhuprasad and they have filed the false complaint against him.
12. It is further argued that the accused has adduced evidence of DW2 and DW3, wherein both the witnesses have stated that the complainant forced them to present the cheque in their account and thereafter give the same to him. Both witnesses have stated that the accused has stated before him that one Madhuprasad stolen his cheques. It is further stated that the trial court has committed an error in not taking into consideration the documentary evidence, version and deposition of DW1, DW2 and DW3, and the complaint averments, deposition and documents clearly reflects that it is contradictory to one another and not supported by any documentary evidence to prove that the complainant could manage such a huge sum of Rs.5,50,000/-. It is further stated that no prudent man or any common man will lend such a big amount to anybody without obtaining any valid documents that too it is not made clear as to what made the respondent to lend the appellant loan on five different occasions, by way of cash and thereby claiming Rs.2,50,000/-. The trial court has not appreciated the documentary evidence, deposition of the appellant. It is his further argument that the records submitted by the accused clearly shows that the complainant has misused the cheques in question which is stolen by 8 Crl.A.No.1499/2016 one Madhuprasad, the Auto driver of the appellant during the period when the appellant is suffering from ill-health. The appellant has succeeded in rebutting the initial presumption by leading cogent evidence and placing reliable public documents and additional witnesses in his support. The trial court has not considered the material placed by the appellant in a proper perspective and wrongly came to the conclusion and passed impugned judgment of conviction.
13. During the course of the oral argument the learned counsel for appellant has stated that there is no mention about the source of income either in the complaint or in the notice. The trial court recorded the conviction on the basis of the judgment in CC.No.33363/2014. The accused has given a reply to the notice stating that the complainant is stranger to him and he has no financial capacity to lend that much amount the complainant has not issued any rejoinder to the said reply and no income tax has paid. It is further submitted that no interest is charged on the amount. When no interest is charged there arise a serious doubt in the case of the complainant whether the complainant has paid the amount. Immediately upon the receipt of the notice the complainant has lodged the police complaint. The demand notice, complaint averments are contrary to each other except the cheque no document is produced to show that the loan is lent. The complainant has not proved his financial capacity. There is no convincing evidence to establish the case in favour of the complainant.
14. The argument of learned counsel for respondent/ complainant is that the trial court, while passing the judgment taken all the oral and documentary evidence into consideration and the trial 9 Crl.A.No.1499/2016 court has appreciated the evidence in a proper perspective. There is no error or illegality in the final judgment of the trial court. That the defense that has taken by the accused is an after thought process. Apart from the complainant the accused has borrowed loan from several other persons and he also facing the cases initiated by both persons. The story created by the appellant is an after thought process. Lodging of the complaint after huge delay is nothing but building a false story. By referring to the deposition and the documents relied upon by the accused he has submitted that there is no error or illegality in the judgment passed by the trial court and the same does not call for interference by this court. With this submission he has sought for rejection of the appeal.
15. After perusal of the records, keeping in view the points of argument I proceed to discuss the points for consideration.
16. Firstly, it is necessary to discuss whether the complainant has placed sufficient material to draw the presumption. The complainant has submitted the sworn statement and he has produced the documents at Ex.P1 to 18. Ex.P1 & 2 are the cheques, Ex.P1(a) & 2(a) are the signatures of the accused, Ex.P3 to 5 are the bank endorsements, Ex.P6 & 7 are the office copy of demand notices, Ex.P8 & 9 are the postal acknowledgements, Ex.P10 & 11 are the reply notice, Ex.P12 & 13 are the bank passbooks, Ex.P14 is the certified copy of judgment in CC.N.33363/2014, Ex.P15 is the certified copy of deposition of the accused in CC.No.33363/2014, Ex.P16 is the certified copy of deposition of DW3 Mrs. Lalitha in CC.N.33363/2014, Ex.P17 is the certified copy of list of witnesses in PCR No.9653/2015 and Ex.P18 is the certified copy of deposition of DW2 Mr. Rupert Prashanth D' Souza in CC.N.33363/2014.
10Crl.A.No.1499/2016
17. The accused has admitted his signature on the cheque. Since the accused has admitted his signature on the cheque and also admitted that the cheques belongs to him. The contention of the accused is that the cheques were stolen, the same were not issued towards discharge of debt. When the accused has admitted that the cheques belongs to his account and same bears his signature, the court has to draw the presumption in favour of the complainant that the cheque is issued for some consideration and finding of the trial court in this regard is not erroneous. In the result I answer point No.1 in the 'Affirmative'
18. Point Nos.2 to 4:- These points are taken together for discussion for the sake of convenience and to avoid repetition of facts.
19. The defense of the accused is that he has not drawn the cheque for consideration, the complainant is stranger to him, the complainant has no financial capacity to lend the cheque amount, the complainant has misused the cheque stolen by one Madhuprasad.
20. The accused has given reply as per Ex.P10 to the demand notice. In the reply itself he has raised the defense. It is stated in Ex.P10 that the complainant is utter stranger to him. When the complainant is not known to him, the question of issuing the cheque does not arise at all. The complainant some how got the said cheque and presented the same the complainant is claiming illegal money from the accused though no money transaction taken place between himself and the complainant. Madhuprasad accused had misplaced the cheque leaves of his bank, he tried to trace the 11 Crl.A.No.1499/2016 same in all the place, he could not trace it, having left with no option he has issued stop payment letter to the bank
21. Totally two cheques are stated to have been issued by the accused. One cheque is returned with endorsement 'funds insufficient', another cheque is retuned with endorsement 'stop payment'. The cheque in question in the present case is cheque bearing No.839279, which is returned with endorsement 'funds insufficient'.
22. The first defense that has been raised by the accused is that the complainant is stranger to him. In this regard let me now discuss the evidence of PW1. In the cross-examination of PW1 it has been suggested to PW1 that the accused and the complainant are Secretary and Treasurer to Shakthi Ganapathi Trust. At that time there was a small money transaction between them. This suggestion has been admitted by the complainant. It is further suggested to PW1 that in the year 2005 the complainant had borrowed Rs.50,000/- from the accused and he has not returned the same. From 2004 there was dispute between himself and the accused pertaining to trust matter and the complainant has removed the accused from the Shakthi Ganapathi Trust. Both these suggestions are denied by the complainant.
23. Further, in his evidence the accused has stated that he knows the complainant since 2004 and he was Secretary to the Shakthi Ganapathi Trust and the accused was Treasurer and there was a money transaction. In the year 2007-2008 there was mismanagement in the Shakthi Ganapathi Trust and 2 to 3 persons had quarreled, thereafter, he was removed from the Trust.
12Crl.A.No.1499/2016 Thereafter, he has resigned from the trust. Due to this there was a difference of opinion between himself and the complainant. The suggestion put to PW1 and the evidence of DW1 discussed above clearly show that the complainant and the accused were known to each other. With this I hold that the defense of the accused that the complainant is stranger to him is not established.
24. Another defense that has been raised by the accused is that the complainant was not having financial capacity. The case of the complainant is that himself and the accused are neighbours and they were close friends since several years and they used to help each other. In the month of February, 2012 the accused had borrowed a sum of Rs.1,00,000/- by cash from him as hand loan for his urgent needs and had returned within one month. The accused has further requested him to arrange some amount about 5 to 6 lakhs during the month of May, 2012 for fulfillment of commitments and assuring that he will repay the same. Thereafter, he has paid a sum of Rs.5,50,000/- and the accused had issued two cheques. At the request of the accused he presented the cheque the same was dishonored. The complainant has produced the bank passbook as per Ex.P12 and Ex.P13 to establish his financial capacity and withdrawal of the amount from his bank account to give it to the accused. This entries in this account book shows that he was having sufficient amount at the relevant point of time. Further, DW3- B.V. Lalitha has stated in her evidence that there was a financial transaction between herself and the complainant. She has borrowed a sum of Rs.2,00,000/- from the complainant on 14.06.2012 and she has also borrowed Rs.1,00,000/- from the complainant. Thereafter, she has repaid the said loan with interest at the rate of 3%. The 13 Crl.A.No.1499/2016 entries in Ex.P12 and Ex.P13 the bank passbook and the evidence of DW3 shows that the complainant is having sufficient amount. The entries also show the withdrawal of the amount from the bank. From the evidence of DW3 who has stated that she has borrowed total a sum of Rs.3,00,000/- from the complainant, it can be inferred that the complainant was having financial capacity. Further, the loan amount that has been given by the complainant to the accused is in the year 2012 itself and DW3 has also stated that in the year 2012 she has borrowed Rs.3,00,000/- from the complainant, again this strengthen the case of the complainant that he was having financial capacity. Thus, the complainant has established the financial capacity.
25. With regard to source of income is concerned the complainant has stated that he was working as Assistant Executive Engineer, he was retired on 2003. This contention is not disputed by the accused. Under such circumstances I hold that the complainant has got sufficient source of income.
26. The last defense that has been raised by the accused is that he has kept the signed blank cheques in his bag and one Madhuprasad, in whose Auto rickshaw he was traveling to his office, has stolen the cheques and distributed these cheques to various persons including the complainant. In this regard, it is necessary to look into the evidence of DW1. He has stated that himself and his wife were going to office in the Auto rickshaw of one Madhuprasad. Madhuprasad had asked to lend Rs.10,00,000/- from him and he had denied to give the said amount. Due to this himself and Madhuprasad were not in good terms. Madhuprasad was looking after his bank affairs and he was paying the electricity bill and water bill and he was also taking him to hospital whenever he fell ill. He 14 Crl.A.No.1499/2016 was looking after all his transaction while he was not keeping well, he had kept signed blank cheques of SBI bank of Vidyaranyapura at his bag. At the time, while he was not in office Madhuprasad has stolen the cheque which he had kept in the bag. Since he denied to give Rs.10,00,000/- to Madhuprasad, Madhuprasad stolen the cheques and gave it to different persons including the complainant. He has further stated that he came to know about the theft of his chques by Madhuprasad from one Rupert Prashanth D'Souza. Thereafter, he went to Vidyaranyapura police to lodged complaint, since Vidyaranyapura police did not take any action he has also filed complaint to the Commissioner.
27. DW2 -Rupert Prashanth D'Souza has stated that from 2007 to 2014 he was taking the accused and his wife to the office in his Auto rickshaw. In the year 2014 the accused was not keeping well, at that time the friendship between the complainant and the accused became strained. In the year 2010 he was taking the accused to hospital. In the month of September, 2014 the complainant called him to Shakthi Ganapathi Temple and gave one cheque. At that time Madhuprasad was also there and the complainant insisted him to present the cheque. He told that the cheque belongs to the accused he did not agree to present the said cheque. They have also informed that they have presented the said chequ to the bank and he did not present the same and he has produced the said cheque to the IV ACMM. The hand writing found in the cheque is of the complainant and at the same day he told the said fact to the accused. On the same day the accused told him that Madhuprasad had stolen the cheques. DW3 also stated that the 15 Crl.A.No.1499/2016 complainant had requested her to present the cheque she did not agree for the same.
28. The specific defense of the accused is that Madhuprasad had stolen the cheques and distributed the same to different persons, including the complainant. DW2 and DW3 are examined to prove that the complainant approached them to present the cheques. Let me now the check veracity of these witnesses by discussing their evidence. The accused has stated that he was not keeping well, he was bed ridden. During that period Madhuprasad has stolen the cheques. DW1 has specifically stated that he was bedridden. In the cross-examination dated 18.06.2016 at page -8 he states that he had signed 10 cheques among 24 cheques and he had kept those cheques in a hall. He further states that he was unable to sign the cheques and walk and he was bed ridden from May 2014 to September, 2014. He has further stated that he has not produced any document regarding his ill-health.
29. When the accused has contended that he was severely ill, and his illness is base for his defense, he is expected to place some material to that effect. Though he has stated in his cross- examination that he would produce the documents, non-production of those documents, even in his further evidence before this court raises a serious doubt in his contention. He has further stated that he has not taken leave for 15 days. He has stated that when he was bed ridden from May 2014 to September, 2014 and he has not taken leave more than 15 days it is very hard to believe his contention. He has further stated that immediately after coming to know that the cheques are stolen he gave stop payment request to bank. Out of two cheques one cheque bearing No.091664 returned with 16 Crl.A.No.1499/2016 endorsement 'stop payment'. Another cheque bearing No.839279 returned with endorsement 'funds insufficient'. In his cross- examination dated 09.09.2021 he has stated that he has personally gone to the bank and gave stop payment request and the bank is 28 KM., away from his house. Ex.P5 shows two dates. On 29.04.2014 cheque returned with endorsement 'funds insufficient'. Cheque dated 15.04.2014 returned with endorsement 'stop payment'. Ex.P5 - the bank endorsement bears the date as 30.08.2014 the request must be given stop payment prior to 30.09.2014. When he has stated that he was bed ridden from May 2014 to September, 2014 again going to bank personally in that position and giving stop payment personally it also creates doubt.
30. Another point that needs to be discussed is that the date of knowledge of the alleged theft by Madhuprasad. DW1 has stated in his cross-examination at page -2 that he came to know about the theft of cheque by Madhuprasad from Rupert Prashanth. Thereafter, he went to Vidyaranyapura police to lodge complaint. DW2- Rupert Prashanth stated that on 18.09.2014 the accused told him that Madhuprasad has stolen his cheques. When the accused has stated that it is Rupert Prashanth who told him about the theft of cheque by Madhuprasad the same Rupert Prashanth stated that it is the accused who told him that Madhuprasad has stolen his cheques. When this is a evidence of these two witnesses it is very hard to believe these two versions.
31. A careful appreciation of testimony of DW1, DW2 and DW3 it can be held that all the exercise that has been done is an after thought process and it is very hard to believe the same.
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32. Another contention of the accused is that he was getting sufficient income, his wife was also working. Again this also cannot be accepted. Because, he himself has stated that he had borrowed education loan for his daughter's education, he had sold the house, he was not keeping well and he has also stated that there was a small monetary transaction between himself and the complainant. Even after selling the house he is residing in the same house and litigation is going on. All these admissions show that he was in need of financial assistance. Again his contention that he was not in financial need cannot be accepted.
33. In his additional evidence the accused has produced several documents. All these documents are marked as Ex.D20 to Ex.D40. Ex.D20 is the certified copy of the private compliant in PCR No.9653/201. Ex.D21 is the order sheet in PCR No.9653/2015. Ex.D22 is the 'B' summary report submitted by the police. Ex.D23 is the certified copy of the FIR No.357/2015. Ex.D24 is the notice dated 14.10.2014. Postal covers are marked as Ex.D25 to Ex.D28. Postal acknowledgement and receipts are marked as Ex.D29 to Ex.D36. Ex.D37 is the certified copy of the compliant in PCR No.5330/2014. Ex.D38 is the deposition of Sri. Madhuprasad in C.C No.56092/2014. Ex.D39 is the deposition of PW2 in C.C No.56092/2014. Ex.D40 is the deposition of DW1 in C.C No.56092/2014.
34. The purpose of producing all these documents in his additional evidence is to show that he has taken action against Madhuprasad and other persons including the complainant herein. After registering the private complaint the case was referred for investigation. Thereafter, the police have submitted 'B' summary report which is marked as Ex.D22. The counsel has placed reliance 18 Crl.A.No.1499/2016 on 'B' summary report. In this report the police have submitted that the dispute is in respect of the dishonor of the cheques. Subsequent to dishonor of the cheques the private complaint is filed. The case is in respect of dishonor of cheques is under enquiry before the court this 'B' report is submitted. In his cross-examination dated 09.09.2021 DW1 has stated that he has received the notice on 15.10.2014 which was sent by Madhuprasad on 14.10.2014. Thereafter, he gave stop payment to the bank and he has personally went to the bank and gave stop payment. The bank is 28 KM., away from his house. He further states that the police have not taken his complaint against Madhuprasad and he has not given any notice to Madhuprasad in respect of theft of cheques. He has further stated that he has received notice issued by Krishnamurthy Godakindi in the month of October, 2014 and he has not given any police complaint against Krishnamurthy Godakindi. He does not remember the date on which Madhuprasad has stolen the cheques and he state that after receipt of the notice he came to know that the cheques are stolen. He further admits that after lapse of one yeare he has lodged the complaint against Krishnamurthy Godakindi and by the time he has lodged the private complaint, Krishnamurthy Godakindi has already lodged the complaint against him and he was appearing in that case.
35. He further state that he has placed the signed blank cheques for the purpose of payment of EMI to the bank, and he has not produced any document to show that he had bed ridden and he has not taken leave for more than 10 to 15 days and he has not mentioned the cheque number given to Krishnamurthy Godakindi in 19 Crl.A.No.1499/2016 his complaint and he is facing cases in respect of dishonor of cheques.
36. As it is stated herein above the accused has tried to establish that Madhuprasad has stolen his cheques. He has stated that after submission of the 'B' summary report he has filed protest petition and he still appearing in this case. The 'B' report was submitted on 14.06.2014. He state that till today the case is running. All these documents goes to show that he has made an attempt to show that he has taken some action against the complainant and another person Madhuprasad. However, no positive order is passed in favour of the accused in these cases. Even after lapse of nearly about six years the cases are still running. Under such circumstances it cannot be held conclusively that the cheques that have been dishonored in the present case are stolen by Madhuprasad. The accused cannot get benefit of all these pending proceedings.
37. Further, another aspect which needs to be discussed here is that the accused has kept the signed blank cheques in the pouch and he has placed the pouch in the drawing room. The accused is an educated person and he has stated that he is a Scientist in DRDO and he has stated that he knows the consequences of keeping the signed blank cheques which is accessible to the third person. No prudent man would keep the signed blank cheques in the place which is accessible to third person. For all these discussion certainly goes to show that the defense raised by the accused are not probable defense. There are several inconsistence in his evidence. All the exercise that has been done by the accused i.e., lodging the police complaint, filing private complaint against the 20 Crl.A.No.1499/2016 complainant and others, giving stop payment, certainly appears to be an after thought process. None of the defense raised by the accused constitute a probable defense. The evidence of DW2 and DW3 are not probable to believe the defense of the accused. The findings given by the trial court cannot be found fault and the same does not call for any interference by this court.
38. The counsel for appellant has relied upon the judgment passed by the Hon'ble Apex Court in the case of, Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, reported in 2008 (4) SCC 54, to contend that the 'complainant must prove the guilty of the accused beyond reasonable doubt, the standard of proof required on the part of accused is preponderance of probabilities '. He has specifically relied on the observation that 'Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act, it merely raises a presumption in favour of a holder of the cheque the same has issued for discharge of debt or liability'. Referring to the observation the counsel submit that only because the cheque is issued is not entitle for presumption that the cheque is issued towards discharge of legally recoverable debt. He further submits that the accused has placed sufficient material to rebut the presumption and the complaint has not proved his capacity. However, in the same judgment the Hon'ble Apex Court, at para-35, has made the following observation 'A statutory presumption has an evidentiary value. The question as to whether the presumption whether stood rebutted or not, must, therefore, be determined keeping in view the other evidences on record. For the said purpose, stepping into the witness box by the appellant is not imperative. In a case of this nature, where the chances of false implication cannot be 21 Crl.A.No.1499/2016 ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration'.
39. In the present case the accused has entered into witness box and examined himself as DW1 and examined two more witnesses on their behalf. Their evidence has already been discussed in detail. As it is observed by the Hon'ble Apex Court whether the presumption stood rebutted or not, be determined keeping in view the other evidences on record. I have already concluded that the story that one Madhuprasad has stolen the cheque and gave it to several persons including the complainant, is the story evalued by the accused. His evidence is not sufficient to rebut the presumption available to the complainant and more over this defense does not constitute a probable defense.
40. The counsel for appellant has further placed reliance of the judgment of Hon'ble Apex Court in Rangappa Vs. Sri. Mohan reported in (2010) 11 SCC 441. It is his argument that the accused has rebutted the presumption and the burden reversed on the complainant, in turn the complainant has failed to rebut the presumption. In the circumstances of the case I feel it necessary to refer the observation made by the Hon'ble Apex Court in this case at para-26 of the judgment, wherein it is held that ' the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, 22 Crl.A.No.1499/2016 this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.
41. Applying this observation I hold that the complainant has placed sufficient material to draw initial presumption in his favour. Though the accused has contested the existence of legally recoverable debt or liability he could not succeed in the same. The counsel has produced another judgment in Shiva Murthy Vs. Amruthraj, reported in ILR 2008 KAR 4629 . He has referred the following observation.-
'The circumstances of not charging any interest was also considered as the relevant circumstance to find out as to whether the existence of the debt has been proved or not. In the case on hand also, not only no document has been executed even, no interest has been charged. No explanation is forthcoming from the complainant as to why interest was not charged on Rs.75,000/- alleged to have been lent by him for a period of nearly 10 months. No prudent man, in my considered view, would lend substantial amount of Rs.75,000/- without charging interest. Admittedly, provisions of Section 269 SS of Income Tax Act has not been followed, as, it is not the case of the complainant that, the loan of Rs.75,000/- was advanced by means of account payee cheque'.
42. The counsel has submitted that absolutely there is no evidence to show that some interest is charged on the loan advanced. When it is so the there arise doubt on the complainant's 23 Crl.A.No.1499/2016 case. Again I decline to accept this contention because it is clear from the testimony of witnesses that the accused and the complainant were earlier known to each other and they were working in the same trust. It is further brought on record that earlier there was an financial transaction between the complainant and the accused. The complainant has specifically contended that the accused has borrowed a loan on various dates with assurance to repay the same. However, this itself will not dis entitle the complainant to bring action against the accused.
43. Another judgment that has been relied upon by the appellant is Rohitbhai Jivanlal Patel Vs. State of Gujarat & another. The respondent counsel has not at tall disputed the application of this observation in the case in hand. Because, it is specifically held that the courts need not insist in every case that accused should disprove non-existence of consideration and debt by leading direct evidence because existence of negative evidence is neither possible nor contemplated. In the present case the accused has led the direct evidence to disprove the complainant's case. With detail discussion the evidence of accused and that of his evidence, I hold that there are no sufficient to rebut the presumption.
44. Further, the counsel placed reliance on the judgment in M/s. Kumar Exports Vs. M/s. Sharma Carpets, 2009(1) Supreme
231. The counsel has referred the observation that 'Rebuttal does not require proof beyond reasonable doubt. Something probable has to be brought on record burden of proof can be shifted back to the complainant by producing convincing circumstantial evidence. Thereafter the said presumption arising under Section 118 and 139 case to operate. To rebut the said presumption the accused can also 24 Crl.A.No.1499/2016 reply upon presumption under evidence act 1872 Section 114 (Common course of natural events, human conduct and public and private business).
45. On the same point the counsel has also referred the judgment reported in 2011 (3) KCCR 1825, wherein it is observed that 'The accused an an offence punishable under Section 138 of N.I. Act is not expected to prove his defense beyond reasonable doubt as he expected by complainant in criminal trial.' Both these cases are referred to contend that the complainant must prove his case beyond reasonable doubt. In the present case the detail discussion, the points for consideration are already answered in favour of the complainant. Hence, these observations will not come to the aid of the accused.
46. So far as source of income is concerned, the counsel referred the judgment reported in 2019 (3) KCCR 2126 (SC) wherein it is held that 'complainant failed to establish the source of funds which he is alleged to have utilized for the disbursal of the loan of Rs.15,00,000/- to the appellant'. And (2015) 1 SCC 99 wherein the Hon'ble Apex Court has held that 'Legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to accused'. Relying upon the ratio laid down in the decision with Rangappa Vs. Mohan.
47. Again both these observations will not come to the aid of the accused. Because, the complainant has produced his account extract. The entries made in the account extract shows the sufficient balance and the relevant entries also show the withdrawal of the amount from his account.
25Crl.A.No.1499/2016
48. The counsel has also referred the judgment in John K. John Vs. Tom Varghese & another, reported in 2008 SC 278, wherein he has mentioned the following observation.-
'The presumption under Section 139 of N.I. Act, could be raised in respect of some consideration and burden is on the complainant to show that, he had paid amount shown in the cheque. Whenever there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally necessary to know how the complainant advance the huge amount.'
49. In this case, the Hon'ble Apex Court has held the presumption can be raised in respect of some consideration and burden is on the complainant to show that, he had paid amount shown in the cheque. Whenever there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally necessary to know how the complainant advance the huge amount.'
50. In the present case in his examination and in his cross- examination the complainant has demonstrated what purpose the accused has borrowed the loan and he has withdrawn the amount from his account and gave the same to the accused. This is also not available to the accused.
51. To contend that unaccounted cash amount is not legally enforceable debt or liability within the meaning of explaining to Section 138 of N.I.Act, the counsel has referred the judgment reported in 2014 (3) DCR 760. However, in Rohitbhai Jivanlal Patel Vs. State of Gujarat & another, the Hon'ble Apex Court has referred the observation made by the Hon'ble High Court that if the 26 Crl.A.No.1499/2016 transaction in question was not reflect in the accounts and in the income tax returns, that at the best would hold the assessee or lender liable for action under the Income-tax laws, but the complainant succeeds in showing lending of the amount, the existence of legally recoverable debt cannot be denied.
52. In the present case also the complainant has specifically contended that he was having sufficient amount in his account, after withdrawing the same he gave it to the accused. More over, the amount involved in this case is Rs.5,50,000/-. All these grounds are urged before this court and the accused has not raised this ground before the trial court. Again this will also not come to the aid of the accused. With these discussion I answer point Nos.2 to 4 in the 'Negative'.
53. Point No.3:- In view of my findings on point Nos.1 to 4, I proceed to pass the following.-
ORDER The appeal filed by appellant under Section 374(3) of Code of Criminal Procedure, is dismissed.
The impugned udgment of
conviction and sentence passed by the
XVIII Additional Chief Metropolitan
Magistrate, Bengaluru, in
CC.No.33383/2014 dated 23.11.2016 is
hereby confirmed.
27
Crl.A.No.1499/2016
Send a copy of this judgment to
the trial Court along with TCR forthwith.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 21st day of April, 2022) (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.