Bangalore District Court
Smt. Chowdamma vs W/O Siddagangappa on 21 April, 2022
KABC010134492020
IN THE COURT OF THE LXII ADDL.CITY CIVIL
& SESSIONS JUDGE, BENGALURU
Dated this the 21 st day of April, 2022
PRESENT
SRI. R. ONKARAPPA, B.Sc, L.L.B.,
LXII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU (CCH-63)
Crl. Appeal No. 672/2020
APPELLANT:/ Smt. Chowdamma,
ACCUSED W/o Siddagangappa,
Aged about 57 years,
R/at 2nd Floor, Siddappaji Nilay,
7th Cross, Vijayalakshmi Layout,
Ward No. 14, Begalgunte,
Nagasandra post,
Bengaluru-562073
(By K. Prakash, Advocate)
-Vs-
RESPONDENT :/ Sri. Chandrashekar
COMPLAINANT S/o Late H. M. Basavarajaiah
Aged about 59 years,
R/at No. 37, 6th cross, 4th Main,
Behind Aarpe Ashraya,
Agrahara Dasarahalli,
Magadi main road,
Bengaluru-560 079
(Sri. V.G.M, Advocate
2 Crl.A. 672/2020
JUDGMENT
The present criminal appeal has preferred by the appellant /accused under Section 374(3) of Cr.P.C against the Judgment dated 02.07.2020 passed by the learned XXIII Addl. Chief Metropolitan Magistrate, Bengaluru in C.C.No. 21637/2016, wherein the said trial Court convicted the appellant for an offence punishable U/s.138 of Negotiable Instrument Act and sentenced her to pay a fine of Rs. 10,00,000/-. In default to pay fine amount shall undergo simple imprisonment for twelve months. Out of fine amount recovered, a sum of Rs. 9,95,000/- shall be paid to the complainant by way of compensation. Remaining fine amount of Rs. 5,000/- shall be remitted to the State.
2 The factual matrix which leads to this appeal are that, the accused was known to complainant and in the month of June, 2015, she approached him and requested for urgent need of money of Rs. 10 lakhs for the purpose of solving her personal financial problems. Accordingly, the complainant had considered the request of accused and paid sum of Rs. 10 lakhs on 08.06.2015 by way of cash. The accused duly received the same and got executed On demand promissory note and consideration receipt in favour of complainant and agreed to repay the same within 8 - 9 months. The complainant has further contended that, on the several requests and demands made by the complainant, the accused has not paid any amount towards the said loan borrowed by her. However, on the repeated requests and demands made by him, she got issued a 3 Crl.A. 672/2020 cheque bearing No.408631 dated:10.06.2016, drawn on Corporation Bank, Chikkabanawara, Bengaluru-90, for sum of Rs. 10 lakhs and she duly singed the cheque. The accused had requested the complainant to present it immediately, accordingly, he presented it for encashment through his banker viz., State Bank of India, Magadi Road Branch, Bengaluru. On seeing the endorsement dated:13.06.2016, he got astonished, the said cheque came to be dishonoured for the reasons "Funds Insufficient'. Thereafter, he brought the said fact to the notice of accused. The accused promised the complainant to pay the said money in cash within few days. But she failed to pay the said money. Therefore, he got issued legal notice to the accused on 16.06.2016 by way of R.P.A.D., the same came to be duly served on her on 18.06.2016. Despite that, either she paid money covered under the cheque or reply the notice. Thereby, she committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, the complaint.
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 examined another two witness in his favour and got marked the documents at Ex.P.1 to Ex.P19. The accused denied the incriminating evidence on examined her under Section 313 of Cr.P.C. To substantiate her defence, the accused examined herself as DW1 and not got marked any documents. 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 4 Crl.A. 672/2020 offence 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. They are, judgment of the trial court is erroneous and failed to appreciated the facts of the case. The Trial Court failed to considered the admissions which are admitted in the cross examination of PW1 and PW3. Failed to appreciated the fact and evidence led by the accused and come to an wrong conclusion that the accused have committed an offence. The Trial Court failed to gave a proper reason in so far admissions made by the PW1 during his cross examination. Judgment of the Trial Court is nothing but one sided. The complainant failed to prove the existence of transaction as alleged in the complaint. Testimony of PW3 cannot to be considered as the PW3 being one of the interested witness as well as relative of the complainant. Though the complainant failed to prove the factum of mobalize the disputed amount through Ex.P17, Ex.P18 and Ex.P19. Even calculate the amount covered under the Ex.P17 to Ex.P19 it would not reach the disputed amount of Rs. 10 lakhs. Ex.P17 to Ex.P19 documents are concocted documents concocted by the complainant after colluded with the PW3. Though there are number of discrepancys and contrary statement in the evidence the same not appreciated by the Trial Court. That the judgment of the trial court is only on the basis of probabilities, assumption and presumption. Therefore the judgment of the trial Court otherwise illegal, arbitrary and un-authoritative. The trial Court 5 Crl.A. 672/2020 consider the minor discrepancy available in the testimony of DW1 as major. Thereby the Trial Court came to wrong conclusion. The complainant himself have no personal knowledge to lend the amount to the accused. No financial capacity to the complainant to lend an amount of Rs. 10 lakhs to the accused. Hence he prays for set aside the impugned judgment of conviction. To avoid the repetition of the facts, the above all grounds are taken for common discussion.
5 After service of notice the respondent appeared through his counsel. The Trial Court Records have been secured.
6 Counsel for the appellant and respondent filed written arguments. Perused the records.
7 The points that arise for my determination are:
1. Whether the complainant established that the disputed cheque has been issued by the accused for repayment of amount?
2. Whether the trial court has committed any error in law or in fact in convicting the accused?
8 My findings to the above points are as under:-
POINT No.1 :- In the Affirmative.
6 Crl.A. 672/2020
POINT No.2 :- In the Negative for
the following:-
REASONS
9 POINT No.1 and 2:- In order to ascertain the
legality on the complaint, I perused the records. That the complainant presented the cheque bearing No. 408631 dated 10.06.2016 as per Ex.P1. He got a memo of endorsement stating "Funds Insufficient" dated 13.06.2016 as per Ex.P2. Demand notice also issued by the complainant against to the accused dated 16.06.2016 as per Ex.P3. Postal receipt as per Ex.P4 dated 17.06.2016. Postal acknowledgment dated 21.06.2016 as per Ex.P5. Perused the records, the complaint came to be lodged by the complainant before the trial court on 29.07.2016 this much case of the complainant have also not much disputing by the accused.
10 After careful perusal of the records, it obvious that the complainant maintained the complaint before the trial court well in time and instrument i.e., cheque present by the complainant through his banker for encashment, also within time and documents valid in nature. As the trial court keenly appreciated all these facts in accordance with Section 138 of N.I. Act, I am of the opinion that the learned trial Judge adopted a rightful procedure in taking the cognizance against to the accused and there is no infirmity on record to interfere in this aspect.
7 Crl.A. 672/2020 11 Core substance of the complaint is that, the accused was known to complainant and in the month of June, 2015, she approached him and requested for urgent need of money of Rs. 10 lakhs for the purpose of solving her personal financial problems. Accordingly, the complainant had considered the request of accused and paid sum of Rs. 10 lakhs on 08.06.2015 by way of cash. The accused duly received the same and got executed On demand promissory note and consideration receipt in favour of complainant and agreed to repay the same within 8 - 9 months. The complainant has further contended that, on the several requests and demands made by the complainant, the accused has not paid any amount towards the said loan borrowed by her. However, on the repeated requests and demands made by him, she got issued a cheque bearing No.408631 dated:10.06.2016, drawn on Corporation Bank, Chikkabanawara, Bengaluru-90, for sum of Rs. 10 lakhs and she duly singed the cheque. The accused had requested the complainant to present it immediately, accordingly, he presented it for encashment through his banker viz., State Bank of India, Magadi Road Branch, Bengaluru. On seeing the endorsement dated:13.06.2016, he got astonished, the said cheque came to be dishonoured for the reasons "Funds Insufficient'. Thereafter, he brought the said fact to the notice of accused. The accused promised the complainant to pay the said money in cash within few days. But she failed to pay the said money. Therefore, he got issued legal notice to the accused on 16.06.2016 by way of R.P.A.D., the same came to 8 Crl.A. 672/2020 be duly served on her on 18.06.2016. Despite that, either she paid money covered under the cheque or reply the notice. Thereby, she committed the offence punishable under Section 138 of Negotiable Instruments Act. The above all averments that the complainant have deposed when he examined at before the Trial Court as PW1. In an contrary though lengthy cross examination have against to chief of the PW1, nothing of the probable defence that the accused have elicited through the mouth of PW1 either by direct admissions or by any of the facts which can infer the defence of the accused.
12 On the contrary PW1 directly answered to the question which was framed by the accused that he doing advocate profession since from last five years. He owned his office at Vijayanagar. He know the accused from three years. The accused is not a client of the complainant. The complainant subscribed an chit at Sadu Sahakara Pattin Sangha. Sri. Lakshmipathi is the President of said Sahakara sangha who is none other than father-in-law of the complainant. PW1 do not know whether the accused is the member or not to the said cooperative society. "On 08.06.2015 he lent an amount of Rs. 10 lakhs to the accused". When that time the complainant taken the chit amount. The complainant have paid the amount to the accused after receipt of amount from Lakshmipathi. Denied the suggestion on 08.06.2015 he did not have amount of Rs. 10 lakhs. At the time of lend the amount to the accused other than Lakshmipathi husband of the accused and one Devaraj were also present at that time. Denied the 9 Crl.A. 672/2020 suggestion Ex.P6 and Ex.P7 pronote is the concocted document. On 10.06.2016, the accused came and issued Ex.P1 cheque to present the same for encashment. PW1 answered to the question that except signature available on Ex.P1 cheque other contents are filled up by the son of the accused. PW1 do not know husband of the accused by name Siddagangappa availed a loan of Rs. 1 lakh at before Lakshmipathi. Denied the suggestion Ex.P1 cheque issued by the husband of the accused to said Lakshmipathi into aforesaid loan transaction of Rs. 1 lakh. Until 2016, the complainant have subscribed three chits. Denied the suggestion that the Ex.P1 cheque issued by the husband of the accused as security in towards to loan transaction of Rs. 1 lakh between Lakshmipathi and husband of the accused.
13 One S. Prasad also examined in favor of the complainant. He being a Manager of Corporation Bank, Chikkabanavara, he came to the Court on virtue of summons issued by the Court and gave his evidence. In his examination in chief he deposed that in relating to S/B account of the accused he had master data form, wherein it available specimen signature of the accused. The same specimen signature of the accused got marked as per Ex.P8(a) to Ex.P8(c). Further, PW2 deposed that the accused before open S/B account at before the PW2 bank, the accused have provide lease agreement, aadhar card, S/B passbook, Cheque leaf, ration card, electrical bill. The same extracts of the all documents got marked as per Ex.P9 to Ex.P14. PW2 further 10 Crl.A. 672/2020 deposed that signature available on Ex.P1 as per Ex.P1(a) belonged to the accused. Ex.P1(a) signature is comparatively equalent with the signature available at Ex.P8(a) to Ex.P8(c). Against to the testimony of PW2, the accused counsel have not tendered any of the cross examination, as such the oral testimony of PW2 and contents of Ex.P8(a) to Ex.P8(c) and Ex.P9 to Ex.P14 remains as unchallenged and unshaken.
14 Further establishment of the case against to the accused, the complainant also examined one Lakshmipathi as PW3. PW3 in his examination in chief he deposed that he know the complainant. The complainant is the customer of his Sadhu Sangham Chits. PW3 also know the accused Smt. Gouramma. PW1 further deposed that the complainant bid the chit amount and received the same money from the chit fund of PW3 on 10.05.2015 for a sum of Rs. 4,05,000/- and Rs. 1,81,000/- by way of Cash. PW1 also deposed that he introduced the accused to the complainant in the year of 2015. The accused approached the complainant for hand loan of Rs. 10 lakhs. For that the complainant paid a sum of Rs. 10 lakhs by way of cash on 08.06.2015 at before the PW3, Devaraj and husband of the accused Siddhagangappa. After receipt of amount on that day itself the accused executed on demand promissory note in favor of the complainant. To that on demand promissory note PW3 tendered his signature as a attested witness. On 10.06.2016, the accused, her husband and her son voluntarily came near to chit office of the PW3 and issued one cheque bearing its No. 408631 dated 10.06.2016 in favor of the complainant to a tune 11 Crl.A. 672/2020 of Rs. 10 lakhs. Thereafter it came to know the PW3 that the same cheque returned back after dishonored. As such PW3 tendered his evidence before the trial court as an eye witness to all transaction between the complainant and the accused. In an cross examination nothing of the probable defence that the accused have established through the mouth of PW3 except denial of suggestions. Therefore the testimony of PW3 also remains as unchallenged before me.
15 On the contrary the accused also examined at before the Trial Court. In her chief examination she deposed that she well know the facts and circumstances of the case. The complainant is stranger to the accused. No transaction between the complainant and the accused. In order to gain the wrongfulness against the accused the complainant have filed this false complaint. The accused is illiterate, house wife, no worldly knowledge either to read or write, that she has no legal necessity to avail loan of Rs. 10 lakhs from the complainant on 08.06.2015. That at no point of time the accused issued a cheque to the complainant. Husband of the accused by name Siddagangappa issued cheque in question to one Lakshmipathi for security purpose of loan amount of Rs. 1 lakh. Even inspite of realize Rs. 1 lakh loan, said Lakshmipathi failed to return the cheque in question. The same herein try to mis use by the complainant. On demand promissory note is one of the created document. The same on demand promissory note not executed by the accused. With this regard she made a complaint against to the complainant at before the police, the police have also not 12 Crl.A. 672/2020 taken any action against the complainant. No capacity to lend huge amount to the accused as stated in the complaint. On the contrary the accused being a common home maker she solely depending upon meager income of her husband, that no property standing in her name. As such no occasion arose to the accused to raise loan amount at before the complainant. During the cross examination of DW1, DW1 categorically denied the suggestion that she has not put any signature upon Ex.P1 cheque and 313 Cr.P.C. statement. It elicited no complaint that she lodged against the complainant or Lakshmipathi. Further DW1 denied the suggestion signature available on Ex.P6 and Ex.P7 on demand promissory note and receipt as well as signature available on vakalath filed by the accused, belonged to the accused.
16 When go through material available case on record though the accused denied the signature available on Ex.P1 cheque, 313 of CrP.C. Statement and Vakalath filed by the accused at before the Trial Court, the accused have not tendered any of the expert opinion with respect to signature available on Ex.P1 cheque. Further the accused have not denied that the Ex.P1 not belonged to her. Net defence of the accused that she being a house wife and that she have no worldly knowledge and social interactions that there is no occasion arose to the accused to raised an loan amount of Rs. 10 lakhs. On the contrary the complainant have contended that the accused came and approached loan of Rs. 10 lakhs on 08.06.2015. Based on such request the complainant have lent 13 Crl.A. 672/2020 an amount to the accused and to that respect the accused have executed Ex.P6 and Ex.P7 on demand promissory note and receipt. True that the accused denied the execution of Ex.P6 and Ex.P7 on demand promissory note and receipt as the same were concocted documents concocted by the complainant after colluded with Lakshmipathi. Herein pertinent to note that though the accused denied the execution of Ex.P6 promissory note and Ex.P7 receipt and signature available on the each documents the accused have not tendered any expert opinion that the signature as per Ex.P6(a) and Ex.P7(a) not belonging to the accused. Further the accused have no defence why the complainant concocted the Ex.P6 promissory note and Ex.P7 receipt and what is the reason that behind to concoct the said documents. Also the accused have not at all an defence that what steps she taken against to the complainant for the charge of concocted to Ex.P6 and Ex.P7 documents. True that in an cross examination of PW1 it suggested to PW1 that the Ex.P6 and Ex.P7 are one with concocted, except that an suggestion nothing more material that the accused succeed to brought on record to establish the factum of that the Ex.P6 and Ex.P7 documents are one with concocted and not with an document to establish real intention and real transaction between the complainant and the accused. Therefore that I am of the view that there is no infirmity in the appreciation of the evidence appreciated by the learned trial Court upon ex.P6 and Ex.P7. With this background the argument of the learned counsel for the appellant would not holds any water.
14 Crl.A. 672/2020 17 Further defence of the accused that she do not know the worldly knowledge and have no property at all that she had no occasion to raise loan amount of Rs. 10 lakhs at before the complainant and issued an Ex.P1 cheque to the complainant. According to further defence of the accused the same Ex.P1 cheque issued by her husband namely Siddagangappa to PW2 Lakshmipathi in relating to loan transaction between Lakshmipathi and Siddagangappa for a tune of Rs. 1 lakh. Even inspite of realize the same loan amount of Rs. 1 lakhs, said Lakshmipathi failed to return the Ex.P1 cheque to Siddagangappa. No doubt the accused have in totally denied her signature available on Ex.P1 cheque as per Ex.P1(a). Even the counsel for the complainant make try to compare the signature available on vakalth of the accused and 313 of Cr.P.C. statement, the accused then also surprisingly denied her signature available on vakalth filed for the accused and 313 of Cr.P.C. statement not belong to her. With this background the testimony of Pw2 is take much significant role to determine whether Ex.P1(a) signature belonged to the accused or not. With this respect, PW2 categorically deposed that the accused is one of the customer of PW2 bank and the accused have S/B account at before bank of PW2. In order to kept open S/B account, the accused tendered more documents belonged to her namely lease agreement, aadhar card, passbook, cheque list, ration card, electrical bill, the same documents now at marked as per Ex.P9 to Ex.P14. In so far Ex.P9 to Ex.P14 documents no defence at all on side of the accused. Further go through testimony of PW2, PW2 deposed 15 Crl.A. 672/2020 that he brought one master data form in related to S/B Account of the accused. The same master data form bears the specimen signature of the accused. The same specimen signature of the accused got marked as per Ex.P8(a) to Ex.P8(c). PW2 further also opined that Ex.P1 cheque belonged to the accused and signature as per Ex.P1(a) is the signature of the accused comparably equivalent with the signature available on Ex.P8(a) to Ex.P8(c). Admittedly the accused have not tendered any cross examination to the testimony of PW2. Therefore that I have no hesitation to hold that the Ex.P1 cheque belonged to the accused and signature as per ex.P1(a) belonged to the accused only. And on the contrary nothing of the material that the accused have brought forth on the record to Ex.P1(a) signature not belonged to her except denial of suggestion. With this observation I am of the opinion that, in order to escape from the liabilities the accused have denied her signature both in cheque as per Ex.P1, Vakalth filed for the accused and 313 of Cr.P.C. statement.
18 Further ut most contention of the accused that the complainant have no financial fit in condition to lend an amount of Rs. 10 lakhs to the accused. With that respect the accused made several question to the Pw1 as well as PW3. On the contrary the complainant stated that he had subscribed three chits at before Sadhu Sangam Chits, the same three chits he had invested amount, as the three chits were got attain maturity, said amount he lent to the accused on that particular date of transaction. To support his contention, PW1 got marked 16 Crl.A. 672/2020 one acknowledgment of registration of firms as per Ex.P15 and three slips issued by Sadhu Sangam Chits as per Ex.P17 to Ex.P19. When go through Ex.P17 to Ex.19. Ex.P17 to Ex.P19 document reveals that, there are some sort of amount that the complainant have got collected. True that, in an cross examination of PW3, the accused have suggested to PW3 that, even calculate the amount covered under Ex.P17 to Ex.P19 it would not reach the amount of Rs. 10,00,000/-. On the contrary the same suggestion suggested by the accused to the Pw3, as per Ex.P17 to Ex.P19 document it would reach total amount of Rs. 5,80,000/-. The disputed the cheque amount is of Rs. 10,00,000/-. In so far lending of the amount to the accused the complainant have categorically stated that on 08.06.2015 at before Lakshmipathy, husband of the accused and one Sri. Devraj, the complainant paid the amount to the accused. Further ascertain the defence of the accused, in relating to financial fitness of the complainant it is very much necessary to go with the cross examination portion of PW1. In an cross examination portion of PW1, though Pw1 have admitted the suggestion that he is not a tax assesses, PW1 have directly answered to the question that he is an practicing advocate, that he put his practice as an advocate from last five years and he owned his office at Vijayanagara. In so far owning of the profession and earning from his profession i.e. financial transaction of the complainant nothing of the questions that the accused have framed to the PW1. If once the accused have make sure that the complainant have no financial capacity, the accused could have made several question to the PW1 that the 17 Crl.A. 672/2020 complainant have no avocation of advocacy and no income to the complainant from his profession. With this respect the accused have even not made any single suggestion to the Pw1 that the complainant have no definite source of income from his profession. When one person have a profession and definite job, one can presume the fact that, there is an income from his profession and his job. With this sort of observation that I am of the view that, there is no substantial force in the argument of learned counsel for the accused.
19 The evidence of the complainant along with documentary evidence clearly and categorically establish all the ingredients of Section 138 of N.I. Act. Moreover, the accused did not denied the issuance of cheque in question in favour of the complainant and the statutory presumption under section 139 N.I. Act remained as un-rebutted. Under this circumstance, the learned trial court drawn the presumption in favour of the complainant u/s 139 of N.I. Act that the accused had issued the cheque in question to the complainant towards discharge of legally enforceable debt or liability.
20 In view of the evidence referred above, the legal presumption under Section 139 of N.I. Act has to be raised. Raising of presumption under Section 139 of N.I. Act is permissible even as per the law laid down by the Hon'ble Supreme Court in the case of Rangappa V/s. Mohan in the decision reported in (2010) 11 SCC 441. Such presumption includes the existence of legally enforceable debt 18 Crl.A. 672/2020 or liability. Therefore, presumption raised to the cheque by the trial court cannot be interfered with.
21 On appreciation of entire evidence, this Court is of the opinion that the accused has failed to prove the fact that he has not issued cheque for discharge of legally enforceable debt. On the contrary, the complainant has proved that the accused has issued cheque/Ex.P2 for a sum of Rs. 9,15,583/- towards discharge of legally enforceable debt and on presentation of the cheque, it was dishonored for the reasons "Funds Insufficient". Even after service of legal notice, the accused has not paid the cheques amount. Hence, in the considered view of this Court, the complainant has proved that the accused has committed an offence punishable u/s 138 of N.I. Act. Such evidence is sufficient to punish the accused for the offence under Section 138 of N.I. Act.
22 Even inspite of gone through the records, there is no materials available on records to substantiate the ground which are urged by the appellant in his appeal memo and the trial court rightly appreciated the facts and law upon the case on hand, as the trial court appreciated the facts and law upon the case, I have no hesitation to agree with the observation made by the learned trial judge. In view of such evidence on record, it is of my opinion that appellant failed to establish any illegality or error or infirmity in the judgment and sentence passed by the Learned Trial Court as such, I hold that the trial court has not committed any error in convicting the accused. Accordingly, the 19 Crl.A. 672/2020 Appeal has to be rejected. Thus, I answer point No.1 in the Affirmative and point No.2 in the Negative and proceed to pass the following:
ORDER The Criminal Appeal filed under Section 374(3) of Cr.P.C. is hereby dismissed.
Judgment and sentence dated 02.07.2020 passed by the learned XXIII ACMM, Bengaluru in CC No. 21637/2016 is hereby confirmed.
Send the copy of the
Judgment along with the records to
the Trial court.
(Dictated to the Stenographer directly computer, typed by her and then corrected and pronounced by me in the open court on this the 21 st day of April, 2022).
(R. ONKARAPPA) LXII Addl. C.C. & Sessions Judge, BANGALORE CITY.