Bangalore District Court
/ Sri. B. Ramanand vs Major In Age on 14 December, 2015
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.CHANDRASHEKHAR MARGOOR, B.Sc., LL.B.(Spl)
LXVII ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Dated this the 14th day of December, 2015
Crl. Appeal No.967/2014
APPELLANT / Sri. B. Ramanand
ACCUSED Major in age,
Gurupreeth Residency,
No.45, F-8, 4th Cross,
Bhoopasandra,
Bengaluru - 560 075.
(By Sri.H.S.Girish Advocate)
.Vs.
RESPONDENT / Sri.B.R.Pradeep Kumar
COMPLAINANT S/o. Sri.D.Ramakrishnaiah,
Aged about 29 years,
R/at. Bolamaranahalli,
Sonadekoppa Post,
Nelamangala Taluk,
Bengaluru Rural Dist.,
Bengaluru.
(By Sri.P.N.G Advocate)
JUDGMENT
The advocate for the appellant filed this appeal being aggrieved by the order passed in C.C.No.19494/2009 dtd: 8.07.2014 by the XIX Addl. C.M.M., Bengaluru.
2 Crl.Appeal No.967/20142. The appellant herein was the accused and respondents herein were the complainant before the trial court. For the sake of convenience, parties would be referred to by the ranks, they were assigned before the trial court.
3. The brief facts of the case of the complainant are that, the complainant and accused are the civil contractors and doing civil contract work at Bengaluru and hence, they know each other by the same profession. The accused approached the complainant during June / July 2008 and requested for hand loan of Rs.2,10,000/- for the purpose of investment for his contract work. The complainant has advanced hand loan of Rs.2,10,000/- on 05.07.2008, at that time, the complainant and his father have sold some of their agricultural land and having cash with him. The accused has agreed to repay the said loan within 5 months along with interest at the rate of 2% p.m. The accused failed to keep up his words, hence, the complainant demanded the accused for repayment of the said loan. Hence, the accused has issued 2 post dated cheques one for Rs.1,00,000/- bearing Cheque No.119259 dtd:24.01.2009 pertaining to E-con proprietorship and also issued another cheque bearing Cheque No.119254 for Rs.1,10,000/- dtd:25.01.2009 both are drawn on Janatha Co-operative Bank Limited. The complainant presented those cheques through his banker namely Canara Bank, Nelamangala Branch, Bengaluru but, the said cheques 3 Crl.Appeal No.967/2014 came to be dishonored for the reason "insufficient funds"
with bankers endorsement on 29.01.2009. The complainant got issued legal notice dtd:19.02.2009 calling upon the accused to pay the cheques amount along with interest at the rate of 2% p.m through RPAD and UCP. The RPAD notice returned with endorsement as not claimed, but, UCP was served on the accused. Despite service of said notice, the accused either paid the cheques amount or replied to the said notice. Hence, the complainant lodged the complaint under Sec.200 of Cr.P.C. r/w. Sec.138 of N.I.Act on 01.09.2009 before the XIII Addl. C.M.M., Bengaluru. The XIII Addl. C.M.M., Bengaluru has taken the cognizance and ordered to register it as PCR No.7180/2009 and the sworn statement of the complainant was recorded and ordered to register it as C.C.No.19494/2009 and issued summons to the accused.
4. The accused appeared through his counsel and he was enlarged on bail. The plea was recorded. The complainant came to be examined himself as P.W.1 and got marked Ex.P.1 to Ex.P.11 and also got examined P.W.2. The 313 statement was recorded. The accused has denied the incriminating materials posed against him. The accused has adduced his evidence as D.W.1 and got marked Ex.D.1 and D.2. The case was transferred. The XIX Addl. C.M.M., Bengaluru has heard both the sides and passed the conviction judgment and sentenced the accused to pay a fine amount of Rs.2,60,000/- in default he shall 4 Crl.Appeal No.967/2014 under go simple imprisonment for 6 months, out of the said fine amount, Rs.2,55,000/- shall be paid to the complainant as per Sec.357 of Cr.P.C. and balance amount shall be forfeited to the State.
5. The appellant has preferred this appeal being aggrieved by the Judgment passed in C.C.No.19494/2009 on 8.07.2014 by the XIX Addl. C.M.M., Bengaluru on the following grounds;
a) The impugned judgment is contrary to law and evidence. The trial court has committed grave error and not appreciated the evidence in proper perspective and ignored the inconsistencies and contradictory evidence of the complainant and his witness and convicted the accused basing on the insufficient evidence of the complainant.
b) The notice is not duly served on the accused as because Ex.P.8 postal cover not containing the notice in it hence, complaint is not maintainable as because the shara not claimed considered as deemed service cannot be accepted as because there is no allegation in the complaint that, the accused as evading the service of notice. The notice sent through UCP is also not served on the accused still, the trial 5 Crl.Appeal No.967/2014 court has held that, the notice is duly served through UCP, which is erroneous.
c) The complainant has alleged that, he has handed over the loan of Rs.2,10,000/- to the accused on 05.07.2008 as he was having cash as the complainant and his father have sold some agricultural lands. The complainant has stated in the cross-examination that, Rs.2,00,000/- was withdrawn from his mother's account. The complainant has also admitted in the cross-examination that, the said loan was handed over to the accused 3 days after his request. Therefore, there is a cloud in respect of payment of money to the accused as the complainant has taken different stands.
d) The accused and P.W.2 were friends and there was financial transactions between them. The accused has issued cheques to P.W.2, which were misused by the complainant, who is none other than brother of P.W.2's wife. The P.W.2 has admitted in the cross-examination that, he was paying money on interest and used to receive cheques as security for the loan. The complainant and P.W.2 have collusively filed the complaint against the accused. The complainant and accused are not knowing each other. The complainant has not produced any 6 Crl.Appeal No.967/2014 document to show that, he was doing civil contract work and also not produced any document to show that, he has sold agricultural land and he was having a cash on hand on 05.07.2008.
e) Ex.P.10, the account extract of complainant's mother do not discloses about the withdrawal of the amount. Therefore, there is no payment of loan by the complainant to the accused.
Hence, the accused is not liable to pay the amount. There is no liability for the accused as because there is no financial transactions between them.
f) The complainant failed to prove that, the cheques were issued by the accused and they belonged to him. The trial court judgment resulting in miscarriage of justice.
Hence, on all these grounds, the appellant has prayed to set aside the impugned order passed in C.C.No.19494/2009 on 8.07.2014 by the XIX Addl. C.M.M., Bengaluru.
6. The respondent/complainant put his appearance through his counsel. The lower court records were secured.
7 Crl.Appeal No.967/20147. Heard the arguments of both the sides. The advocate for the complainant filed written arguments.
8. From the above facts, the points that would arise for my consideration are as under;
1. Whether, the appellant has made out grounds to interfere with the lower court Judgment as notice is not duly served and the complainant has no capacity to pay the amount?
2. What Order?
9. My findings on the above points are as follows;
POINT No.1 - In the Affirmative.
POINT No.2 - As per the final order, for the following :
REASONS
10. POINT No.1: The advocate for the appellant has vehemently argued that, the notice is not duly served on the accused as the Ex.P.8 is not containing the notice. The notice sent through UCP is not served on the accused. There is no allegation in the complaint that, the accused has evaded service of notice. Hence, the presumption that, the notice is duly served on the accused cannot be held. The complainant is the brother in law of P.W.2. There are no financial transactions between the complainant and the accused. But, the accused was having financial 8 Crl.Appeal No.967/2014 transactions with the P.W.2 and given the cheques as security for the said transactions. In spite of repayment of loan, the P.W.2 has not returned these cheques and stated that, they were misplaced and return it later but, misused in collusion with complainant. The complainant has no financial capacity to pay Rs.2,10,000/- to the accused and there is contradictory version in the evidence of complainant and P.W.2 about alleged payment of hand loan to the accused. Hence, prayed to allow the appeal by setting aside the impugned order.
11. Per-contra the advocate for the respondent has vehemently argued that, the notice is duly served on the accused, as there is an endorsement made by the postal authorities as not claimed, which amounts to service. Moreover, the notice sent through UCP was duly served on the accused but, the notice in Ex.P.2 might have misused during the pendancy of the said Criminal Case. The lower court has rightly held that, the accused has issued the cheques for repayment of loan of Rs.2,10,000/-. The said cheques came to be dishonored for want of sufficient funds and complainant got issued legal notice, which was duly served on the accused. The accused either repaid the amount or replied to the said notice. The complainant has complied the ingredients of Sec.138 of N.I.Act. The complainant is doing contract work. The Ex.P.11, the certificate issued by the contractor reveals the same, and hence the complainant is financially sound and he has lent 9 Crl.Appeal No.967/2014 the amount of Rs.2,10,000/- after withdrawing the amount from his mother's account vide Ex.P.10. The lower court has rightly convicted the accused by appreciating the evidence and documents produced by the complainant. Hence, interference of this court does not warrants and prayed to dismiss the appeal by confirming the conviction judgment passed by the XIX Addl. C.M.M., Bengaluru.
12. It is an admitted fact that, the accused is a civil contractor. P.W.2 is his friend. The accused has availed loan from P.W.2 and he has repaid the amount to P.W.2, which reveals from Ex.D.1 and D.2. The P.W.2 has categorically admitted in the cross-examination that, he will lend the amount to his friends on interest and he used to receive the cheque as security for the loan. He has further admitted that, he was present at the time when the complainant has lent amount to the accused, at that time, himself, complainant and his brother Sandeep and accused were present. But, he does not know from where the complainant has brought the amount. The complainant has lent the amount to the accused after 3 days of the request of the accused. But, the complainant has alleged in the complaint that, the accused has approached him to advance hand loan of Rs.2,10,000/- during June/July' 2008 and accordingly, the complainant has lent Rs.2,10,000/- to the accused on 05.07.2008. The complainant sworn to an affidavit and reiterated the same, P.W.1 has admitted in the cross-examination that, the 10 Crl.Appeal No.967/2014 accused has requested to pay amount during June'2008. Accordingly, on 05.07.2008 he has lent Rs.2,10,000/- to the accused, at that time, P.W.2 was present. There is a contradictory versions between complainant and PW2 as to when the accused has requested the complainant for hand loan. Therefore, it creates doubt about the alleged money transaction between the complainant and accused.
13. The complainant has further stated that he has paid the said amount by way of cash. He further stated that, Rs.2,00,000/- was withdrawn from his mother's account and produced the statement of account pertaining to his mother vide Ex.P.10. The Ex.P.10 discloses that, Rs.2,00,000/- was withdrawn on 28.05.2008, Rs.50,000/- was withdrawn on 06.06.2008 and Rs.3,75,000/- was withdrawn on 12.07.2008. Therefore, it creates doubt in the mind of court as to whether, the complainant has lent Rs.2,10,000/- to the accused on 05.07.2008 by way of cash as because he has not withdrawn such a huge amount either from his mother's account at relevant point of time or not disclosed as to how he has accumulated such a huge amount on 05.07.2008. There arose suspicion about the accumulation of Rs.2,10,000/- on 05.07.2008 with the complainant, hence, the benefit of doubt about payment of cash of Rs.2,10,000/- arose, hence that benefit of doubt will go to accused, on this count alone the accused is entitled for acquittal. The lower court has not appreciated the above aspect of evidence on proper perspective.
11 Crl.Appeal No.967/201414. The complainant alleged in his complaint that, while lending amount to accused, himself and his father have sold their agricultural land and having ready cash with him. But, the complainant has not chosen to produce any scrap of paper to show that, they have sold their agricultural land and having cash in hand on 5-7-2008. The P.W.2 unequivocal terms has admitted that, he is not aware as to how the complainant has accumulated the amount. Hence, there is another inconsistent version between the complainant and P.W.2 though, the complainant is his brother-in-law, at least he should aware of the fact how the complainant has accumulated the amount. Therefore, it creates doubt, in the mind of the court how, the complainant has accumulated the amount.
15. The complainant P.W.1 has categorically admitted in the cross-examination that, he is a class III contractor and he is having license and he can produce the same before the court. But, he has not taken care to produce the said license before the lower court to establish that, he is a contractor by profession but, he has produced Ex.P.11 the certificate issued by one D.H.Suresh contractor to establish that, the complainant is also the class III contractor done the contract work of more than Rs.1,00,000/- under him. But, the complainant has not chosen to examine the said Suresh to prove the contents of Ex.P.11. The accused has categorically denied that, the complainant is not doing any contract work. But, the 12 Crl.Appeal No.967/2014 complainant has failed to show that, he is a contractor by producing cogent evidence and also establish the fact that, he is capable to lend Rs.2,10,000/- to the accused. Therefore, lordship pleased to held in 2015 AIR SCW 64 (K.Subramani .Vs. K.Damodara Naidu) that;
"Complainant had no source of income to lend sum of Rs.14 lakhs to accused - He failed to prove that there is legally recoverable debt payable to the accused to him - Acquittal of accused was proper".
The dictum laid down their Lordship is squarely applicable to facts on hand as because the complainant has failed to prove there exists legally recoverable debt payable by the accused to the complainant. Hence, I am of the considered view that, the complainant was not financially sound to pay Rs.2,10,000/- to the accused on 05.07.2008.
16. The complainant has also admitted in the cross- examination that, he is income tax assessee. If the complainant is income tax assessee he should have produced the income tax return before the lower court to establish that, he has lent Rs.2,10,000/- to the accused the non production of income tax return to the lower court by the complainant adverse inference can be drawn against the complainant. It creates doubt about the genuinity of transaction between the complainant and the accused.
13 Crl.Appeal No.967/201417. The complainant has alleged in his complaint that, he has paid Rs.2,10,000/- to the accused by way of cash but, as per Sec.269 SS of Income Tax Act for cash amount more than Rs.20,000/- has to be paid it should be through cheque only. Therefore, the complainant alleged lending of Rs.2,10,000/- to the accused creates doubt on this aspect also.
18. No doubt, the accused cheques Ex.P.1 and P.2 are with the complainant. The accused has taken defense that, he is having money transactions with the P.W.2 and he has given Ex.P.1 and Ex.P.2 cheques to the P.W.2 as security for the said loan transactions, even after repayment of the said loan amount by the accused to the P.W.2, the P.W.2 has not returned the said cheques to the accused. The P.W.2 being the Central Government Employee working in HAL and moreover, the P.W.2 is a friend of accused. The P.W.2 has stated that, the cheques which were given as security for his loan transactions were misplaced and he further told to the accused that he will return the said Cheques after tracing them. The P.W.2 and the complainant are relatives and hence, they have misused the said cheques and filed the complaint. The P.W.2 has categorically admitted in the cross-examination that, he used to lend the loan to his friends on interest and he used to receive cheques as security but, he is not having any money lending license but, he will help to the persons who are in need of money and accused is his friend, who 14 Crl.Appeal No.967/2014 was introduced through one Shivakumar. From the said admission of the P.W.2, it do go to show that, P.W.2 and accused are friends and there was money transactions between them. The P.W.2 has stated in his chief examination itself that, he lent Rs.2,00,000/- to the accused during 2007 but, the accused has demanded Rs.4,00,000/-. Hence, he asked the complainant to pay the said amount, accordingly, the complainant has lent Rs.2,10,000/- to the accused on 05.07.2008. The accused has produced Ex.D.1 the account extract pertaining to SBM, which discloses that, he has given Rs.25,000/- each to the P.W.2 through Cheques on 18.11.2008 and also Rs.1,00,000/- to the P.W.2 through Cheque on the same day itself. The accused has also furnished the account extract pertaining to Axis Bank through Ex.D.2. The accused has paid Rs.25,000/- to the P.W.2 on 03.03.2009 vide Cheque and also paid Rs.15,000/- through cheque on 07.03.2009. The amount received by the P.W.2 at Sl.Nos.34 to 36 and 30 and 31 respectively. The Cheques Ex.D.1 and D.2 bears the Sl.No.253 and 254 bearing date 24.01.2009 and 25.01.2009.
19. The complainant has denied the defense taken by the accused that, he has misused the cheques of accused which were given as security to the P.W.2's transactions. But, the admission of P.W.2 clearly establish that, the complainant and P.W.2 being the relatives, they have misused the cheques Ex.P.1 and Ex.P.2, which were 15 Crl.Appeal No.967/2014 given as security for the loan transactions pertaining to P.W.2. No doubt, the accused has not taken any legal steps against the P.W.2 for not returning the cheques which were given as security for the money transactions with the P.W.2 but, the version of the accused has to be believed as because P.W.2 and accused are friends. The accused has believed the version of the P.W.2 that, he is going to return the cheques after tracing out, as they were misplaced according to P.W.2 No doubt, the accused came to know about the misuse of Ex.P.1 and Ex.P.2 cheques by the complainant in collusion with the P.W.2 only after receipt of summons from the lower court as because the legal notice dtd:19.02.2009 got issued by the complainant through RPAD, which came to be returned as not claimed vide Ex.P.8. No doubt, the notice is not forthcoming in the said postal cover Ex.P.8. Therefore, the accused has taken contention that, notice under Sec.139(c) is not complied by the complainant. But, the complainant has also sent the said legal notice through UCP as well vide Ex.P.7. The complainant has alleged that, the notice is duly served on the accused as the notice sent through UCP was not retuned. But, the accused has denied the said contention. The address one finding place in Ex.P.7 and Ex.P.8 and the address one shown in the cause title of the complaint vide Ex.P.9 are one and the same. But, the cause title of the appeal memo reveals the same address except flat number. It is shown as F-8 in appeal memo but, F-3 is shown in Ex.P.7 to 9. The accused is residing in Gurupreet 16 Crl.Appeal No.967/2014 Residency, Vinayak Layout, RMV II Stage, Bhoopasandra, Bengaluru. The notice which was sent through UCP might have served on the accused. But, the complainant has not taken pain to establish that, the accused is residing in the said address by producing cogent evidence and moreover, the complainant has not alleged in the complaint that, the accused has evaded the service of notice.
20. The lower court has referred the decisions relied by the accused in 2004(3) Crimes 505 Madras High Court between: S.S.Ummul Habiba, Proprietor, M/s. Alim Auto Supplies v/s. B.Rajendran. Their lordship pleased to held that, "return of postal cover as intimated unclaimed by itself would not amounts to constructive notice when it is not averred in complaint that, accused was evading service". Therefore, I am of the considered view that, the complainant has failed to prove that, the notice is duly served on the accused.
21. No doubt, the Ex.P.1 and Ex.P.2 bears the signature of the accused and they belonged to the accused firms namely E-con. But, Ex.P.1 and P.2 depicts the seal as E-com. But, the accused i.e., D.W.1 has categorically admitted that, Ex.P.1 and Ex.P.2 bearing his signature. Therefore, the difference in seal with respect to 'com' and 'con' does not make any such difference. The accused has denied the contention of the complainant that, the contents of Ex.P.1 and Ex.P.2 are in the handwritings of accused 17 Crl.Appeal No.967/2014 i.e., the name of the complainant and amount in figure and also words and date. But, the complainant has not chosen to send the Ex.P.1 and P.2 to establish that, the contents of the cheque Ex.P.1 and Ex.P.2 are in the hand writings of the accused. The lower court has held that, there is a presumption under Sec.118 and 139 of N.I.Act that, the cheques were issued for discharge of legally enforceable debt but, their lordship pleased to held in 2008 Cri. LJ 1172 (SC Krishna Janardhan Bhat V/s. Dattatreya G. Hegde). It is for the complainant to discharge his primary burden of satisfying the ingredients of Sec.138 to contradict presumption under Sec.118 and 139 of N.I.Act. The dictum laid down by their lordship is aptly applicable to the facts on hand as because, the complainant has failed to discharge the initial burden casted upon him. The complainant has to prove about the existence legally enforceable debt payable by the accused to him. Then, the onus will be shifted on the accused to rebut the said presumption. The accused has rightly taken the defense that, the Ex.P.1 and Ex.P.2 Cheques were given to the P.W.2 as security for the loan transactions and the same were misused by P.W.2 and complainant collusively. The lower court has arrived to wrong conclusion that, Ex.P.1 and Ex.P.2 cheques were issued by the accused to the complainant for discharge of Rs.2,10,000/-. Though, the complainant is not capable to lend such a huge amount to the accused as he is not having any source of income. Though, the complainant has stated that, he is an income 18 Crl.Appeal No.967/2014 tax assessee. If, really, the complainant has lent the amount to the accused he should have shown the same in the income tax returns. The complainant has paid Rs.2,10,000/- by way of cash by violating Sec.269 of I.T.Act Their lordship pleased to held in the decision reported in (2008) 4 SCC 54 (Krishna Janardhan Bhat .Vs. Dattatraya G.Hegde), that the courts below failed to notice that ordinarily in terms of Section 269-SS of the Income Tax Act, any advance taken by way of any loan of more than Rs.20,000/- was to be made by way of an account payee cheque only. On that count also, there is a suspicion arose about the payment of Rs.2,10,000/- to the accused by the complainant. Therefore, the interference of this court is warranted. Hence, I answer the Point No.1 accordingly.
22. POINT No.2: In view of my finding on point No.1 in the 'affirmative' and for the reasons stated above, I proceed to pass the following;
ORDER The Criminal.Appeal filed by the appellant is hereby allowed.
Consequently, the lower court Conviction Judgment passed in C.C.No.19494/2009 dtd:8.07.2014 by the XIX Addl. C.M.M., Bengaluru is ordered to be set aside.
19 Crl.Appeal No.967/2014Acting under Sec.255(1) of Cr.P.C. the accused is acquitted, his bail bonds stands cancelled.
Send back the records to the lower court along with the copy of this judgment.
(Dictated to the Stenographer, transcribed by her, and after corrections pronounced by me in the Open Court on this the 14th day of December, 2015) (CHANDRASHEKHAR MARGOOR) LXVII Addl.City Civil and Sessions Judge, BENGALURU.