Bangalore District Court
Kalavathi vs A.Mohan Raj on 5 February, 2015
IN THE COURT OF THE FAST TRACK COURT-XIV,
BANGALORE CITY.
Dated this the 20th day of February 2014
PRESENT: Sri. Shivaji Anant Nalwade, B.Com., LL.B.(Spl)
Presiding Officer, Fast Track Court-XIV,
Bangalore City.
CRIMINAL APPEAL No.196/2013
APPELLANT Kalavathi, w/o. late Balasubramanya,
r/at No.316, Mahalingehswara Layout,
Audugodi, Bangalore.
(By Sri.M.Y.Nagaraju Advocate)
-Versus-
RESPONDENTS A.Mohan Raj, s/o. late P.Andrews, 62
yrs, r/at No.103, 3rd cross, 7th Block,
Koramangala Layout, Bangalore.
(By Sri.O.Chandrashekar, Advocate)
JUDGMENT
1. The appellant/accused has preferred this appeal under section 374(2) Cr.P.C. challenging the judgment passed by the 13th ACMM Court, Bangalore in C.C.53224/2010 dated 02-03-2013 wherein she has convicted the accused for the offence punishable under section 138 of Negotiable Instrument Act and order to pay fine of Rs.90,000/- and in default of fine shall undergo imprisonment for six months.
2. The appellant was the accused and respondent was the complainant before the trial court for the sake of convenience rank of parties is referred to as stood before the court below.
3. The brief facts leading for disposal of this appeal are as follows :
2Crl.Appeal.196/2013 The complainant and accused are acquainted with each other and in the month of December 2009 accused was facing problem and she has borrowed Rs.50,000/- from the complainant. When the complainant has requested the accused to repay the amount, the accused has issued cheque bearing No.257605 dated 02-06-2010 for Rs.50,000/- when complainant has presented the said cheque for encashment, the said cheque was returned unpaid with endorsement payment stopped by drawer on 04-08-2010. On 12-08-2010 the complainant issued legal notice to the accused and inspite of receipt of the said notice accused neither replied the said notice nor paid the cheque amount within stipulated time, the accused was aware that she was not having sufficient funds in her account to honour the cheque towards the legally enforceable debt and issued cheque and committed an offence punishable under section 138 of NI Act. The complainant has filed private complaint under section 138 read with section 142 of NI Act before the trial court, the trial court has taken cognizance and thereafter the trial court has recorded the sworn statement and issued summons against the accused. The accused in pursuance of the summons appeared before the trial court. The trial court enlarged the accused on bail. Thereafter the trial court has framed acquisition under section 251 Cr.P.C. for the offence punishable under section 138 read with section 142 of NI Act and read over the same to the accused, the accused pleaded not guilty and claimed to be tried. The complainant in order to prove its case examined himself as 3 Crl.Appeal.196/2013 PW 1 and got marked Ex.P-1 to Ex.P-8 documents and closed his side. Thereafter the accused has been examined under section 313 Cr.P.C., the accused examined herself as DW 1 and got marked one document as Ex.D-1 and closed her side. Thereafter the trial court has heard arguments advanced by both the sides and passed the judgment dated 02-03-2013 and convicted the accused for the offence punishable under section 138 of NI Act and order to pay fine of Rs.90,000/- and in default of fine, the accused shall under go imprisonment for six months.
4. The accused being aggrieved by the judgment and order passed by the trial court in C.C.53224/2010 dated 02-03-2013 came in appeal on the following among other grounds. The impugned conviction and sentence passed by the court below is erroneous contrary to law and facts of the case and evidence on record. The trial court has failed to notice that appellant and respondent are totally strangers to each other. The trial court has failed to notice that immediately after the cheque book bearing No.257601 to 257610 having been lost on 03-04-2009, she has lodged the complaint before her Bank, manager, State Bank of India, Bangalore requesting him to stop payment, if any of the cheque is presented. The trial court failed to notice that the appellant cannot issue cheque dated 02-06-2010 in favour of the respondent after the cheque book, a leaf of the same being the cheque in question to the respondent herein and the court below ought to have been drawn an inference on the same. The trial court has failed to notice 4 Crl.Appeal.196/2013 that the cheque in question after the cheque being lost, has went to the wrong hand who misused the same to the detriment of the appellant herein by filling the amount therein. The court below has relied too much on that fact that the cheque, since being said to have been lost in the house there is a presumption that the complainant and the accused are known to each other. On these grounds and amongst other grounds the appellant has requested to allow the appeal, setting aside the judgment and order passed by the trial court and acquitting the accused.
5. This appeal was presented before the Hon'ble Prl. City Civil & Sessions Judge, Bangalore it is registered as Crl.Appeal No.196/2013 and made over to this court for disposal according to law. After the receipt of the records this court has issued notice to the respondent, the respondent appeared through his counsel.
6. Thereafter the LCR's were secured and they are before the court. Heard the arguments advanced by the learned counsel for appellant and learned counsel for respondents in length.
7. The points that arise for my consideration are :
1. Whether the trial court has committed any error in holding that accused has issued cheque bearing No.257605 for Rs.50,000/- dated 02-06-2010 towards the discharge of legally enforceable debt due to him and the complainant has complied the 5 Crl.Appeal.196/2013 mandatory provisions (a), (b) and (c) of section 138 of N.I. Act?
2. Whether the trial court has committed any error in holding that the cheque bearing No.257605 belongs to accused was not lost and complainant has not misused the lost cheque belongs to the accused?
3. Whether the interference is necessary in the impugned order under appeal from this court?
4. What order?
8. After hearing the arguments and perused the documents place before the court. My findings to the above points are as follows :
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : In the Negative
Point No.4 : As per final order for the following
REASONS
9. POINT No.1 TO 3 : In the present case, accused has not disputed that cheque bearing No.257605 which is at Ex.P-1 belongs to her, accused has also not disputed that the said cheque bears dated 02-06-2010. Further accused has not disputed that the said cheque was presented for encashment on 02-08-2010. Further accused has not disputed that the said cheque was returned dishonoured with endorsement payment stopped by drawer. Further the accused has not seriously disputed issuance of notice by the complainant on 12-08-2010. Ex.P-1 cheque dated 02-06-2010 same is presented for encashment within six 6 Crl.Appeal.196/2013 months i.e., on 02-08-2010 cheque was dishonoured on 04-08-2010 and within one month of dishonour of cheque the complainant has issued notice on 12-08-2010. The notice was served on the complainant and thereafter the complainant has lodged the complaint with limitation. The accused has not disputed regarding the compliance mandatory provisions by the complainant under section 138 (a), (b) and (c) of NI Act.
10. In the present case it is specific defence taken by the accused that two chequs bearing No.257605 and 257604 were lost in the month June 2009 and she has reported regarding the loss of the said cheques to the State Bank of India, Wilson Garden Branch, Bangalore. It is further case of the accused that her lost cheque bearing No.257605 came in the wrong hands of the complainant who misused the cheque after filling the same at his whims and fancies and presented the same for encashment for unlawful gain and the said came to be dishonour she has not borrowed any money from the complainant, the complainant has made misuse of her lost cheque and filed present false case. The burden is on the accused to show that her cheques bearing No.257605 and 257604 were lost and the same were gone in the hands of complainant and complainant has misused the same and she has not borrowed the money. The accused in her order to prove her case examined herself as DW 1 and DW 1 in her evidence has stated that the complainant is stranger to her she do not know the complainant there is no money 7 Crl.Appeal.196/2013 transaction between her and complainant, cheque bearing No.257605 and another cheque bearing No.257604 both drawn on State Bank of India, Wilson Garden Branch, Bangalore are her cheques she is an illiterate with a view to draw here salary she kept them with her to unable her to get the same filled and encashed the same. The said cheques were lost by her in the month of June 2006. So she has written the latter to the banker reporting the loss of said cheques and requested them not to honour the said cheque if presented by any stranger. Further DW 1 stated that it seems that the lost cheques gone in the wrong hands of the complainant who misuse one of the cheque bearing No.257605 and after filling the same at his whims and fancies illegally presented the said cheque. DW 1 has been cross-examined by counsel for the complainant and in the cross-examination DW 1 has stated that she has kept the cheques in her house and the same were lost in her house. Further DW 1 has stated that since 10 year earlier to her evidence she is having bank account and earlier her cheques were not lost. Further DW 1 has stated that she has not produced any documentary evidence to show that cheques were lost. Further this DW 1 has stated that she has given letter to the bank stating that her cheques were lost, she is not knowing the number of lost cheques.
11. The accused in support of her case produced the endorsement issued by the Manager, State Bank of India, Wilson Garden Branch, Bangalore which is at Ex.D-1, Ex.D-1 is dated 06-12-2012 and in Ex.D-1 it is mentioned 8 Crl.Appeal.196/2013 that the bank has stopped series of cheques from 257601 to 257610 on 03-04-2009 on customers request, Ex.D-1 discloses that the State Bank of India, Wilson Garden Branch as per the request of the accused stopped payment of series of cheques bearing No.257601 to 257610 containing in a cheque book on 03-04-2009, as per the request of the customer. Ex.D-1 discloses that cheque book belongs to the accused containing 10 cheque leaves lost whereas the complainant in her evidence has stated that only two cheques kept in her house bearing No.257605 and 257604 were lost, the said cheques were signed by her and she has kept the same in her house when they lost. Whereas Ex.D-1 is contrary to the evidence of complainant, accused has not produced the letter issued by her to the State Bank of India, Wilson Garden Branch, Bangalore. Further accused has not examined the Manager of the Bank to prove Ex.D-1, Ex.D-1 discloses that entire cheque leaf book containing 10 leaves is lost, whereas the accused has stated that only two cheque leaves that too signed by him and kept in his house in order to facilitate her to withdraw her salary were lost. Normally no one will keep the signed cheque in his house. If at all accused is illiterate she has to fill up recitals of the cheque and then she has to sign on it and take the money from her bank. The story of the accused that she has kept two signed cheques leaves in his house and same have lost is unbelievable one. The trial court has also in its judgments observed that accused is saying that she is not knowing the complainant and further accused 9 Crl.Appeal.196/2013 says that signed cheque kept in her house were lost and the said fact goes to show that the accused is knowing the complainant and the said observation of the trial court is not illegal. The burden is on the accused to show that two signed cheques kept in her house were lost and one of the lost cheque is misused by accused. Ex.D-1 discloses that entire cheque leaf book containing 10 cheques were lost. Whereas the accused is in her evidence has given different version. The accused has not examined bank manager who has issued Ex.D-1. The accused has not produced the letter alleged to have been given by her to the bank manager for stopping the payment so only marking Ex.D-1 will not prove the case of the accused that her two cheques were lost and the complainant has misused the same. The trial court has scrutinized the oral and documentary evidence on record properly and come to right conclusion that accused has borrowed money from complainant and for repayment of the same has issued a cheque as per Ex.P-1 and complainant has proved that he has complied the mandatory provisions (a), (b) and (c) of section 138 of NI Act. No illegality is committed by the trial court. The judgment of the trial court is well reasoned and no interference is necessary from the hands of this court. The counsel for accused has not pointed out to me how the judgment of the trial court is illegal and capricious. So no interference is necessary to the judgment under appeal. The complainant has proved that accused has borrowed Rs.50,000/- from him and issued cheque as per Ex.P-1 on 02-06-2010 towards discharge of legally enforceable debt 10 Crl.Appeal.196/2013 and he has complied the mandatory provisions (a), (b) and
(c) of section 138 of NI Act. Hence, for the above discussion, I answer point No.1 to 3 in the NEGATIVE.
12. POINT No.4 : In view of my findings on point No.1 to 3, I proceed to pass the following :
ORDER The appeal preferred by the appellant/accused is dismissed with cost.
The judgment of the trial court under appeal is confirmed.
Send back the LCR's along with the copy of judgment to the trial court.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 20th day of February 2014).
(SHIVAJI ANANT NALWADE) Presiding Officer, Fast Track Court-XIV, Bangalore City.
11 Crl.Appeal.196/2013 ORDERS PRONOUNCED IN THE OPEN COURT VIDE SEPARATE ORDER ORDER The appeal filed by the appellant under section 29 of Protection of Women from Domestic Violence Act 2005 is dismissed.
The order passed by the trial court on I.A.-I and I.A.-II is confirmed.
Send the copy of the order to the trial court.
Presiding Officer FTC-XIV, Bangalore.