Bangalore District Court
Smt.Ramamani W/O Chanddrappa vs Smt.Savitha.M. W/O M.K.Shivaram on 10 October, 2017
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU
(CCH-61)
Dated this the 10th day of October, 2017
:Present:
Sri S.K.Vantigodi, B.A., LL.B.,
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl. Appeal. No. 987 / 2016
Appellant :- Smt.Ramamani w/o Chanddrappa
Aged about 53 years
r/o at No.7, 1st Main Road
80th Cross Road, Sahara Layout
Gubbalala Village
4th 'H' Block, BSK 6th Stage
Bangalore-560 061
(Sri K.P.Chandrashekar Reddy, Adv for
appellant)
V/s
RESPONDENT : Smt.Savitha.M. w/o M.K.Shivaram
Aged about 49 years
r/o No.118, 2nd Floor
PWD Quarters
BTS Road
Bangalore-560 027
(Sri K.V.Srinivas Reddy, Adv for Respondent)
JUDGMENT
This appeal is filed U/sec. 374(3) of Cr.P.C., by the Appellant being aggrieved by the judgment of conviction and sentence passed 2 Crl.A. 987/2016 in CC No.5909/2015 dt.02.08.2016 for offence u/s 138 of N.I.Act on the file of XX ACMM, Bengaluru.
2. The Appellant was the accused and respondent herein was the complainant before the trial Court and they are referred to as per the ranks assigned to them before the lower court.
3. The brief facts leading to this appeal can be stated as under:-
The complainant and accused were known to each other since ten years. Under the said close acquaintance, accused approached the complainant in the month of January 2014 for financial assistance of Rs.5,00,000/- in order to discharge the hand loans availed by her from different persons at the time of performing marriage of her daughter in the year 2011. Considering the request of the accused, complainant lent hand loan of Rs.5,00,000/- to accused who received the same with a promise that she will repay the same within 6 to 9 months. Towards discharge of said amount, the accused has issued a cheque bearing No.471581 dt.1.12.2014 for a sum of Rs.5,00,000/- drawn on Syndicate Bank, H.Siddaiah Road branch, Bangalore assuring that the same will be honoured on 3 Crl.A. 987/2016 presentation. Accordingly, the complainant presented the said cheque on 5.12.2014, which was returned with an endorsement as "funds insufficient" in the account of accused. Thereafter, the complainant issued legal notice dt.29.12.2014. In spite of service of legal notice, the accused neither paid the cheque amount nor replied the legal notice.
As such, the complainant initiated legal proceedings against the accused for offence punishable U/sec. 138 of Negotiable Instruments Act. The learned Magistrate took cognizance and recorded sworn statement of complainant and registered case against the accused for offence punishable U/sec. 138 of Negotiable Instruments Act and secured the presence of the accused who after her appearance, denied to plead guilty. Then the complainant examined herself as PW1 and got marked documents as per Ex.P.1 to Ex.P.6. After recording the statement of accused under Sec.313 of Cr.P.C., the accused has not lead any defence evidence on her behalf. Finally, the learned Magistrate after hearing the arguments on both sides, proceeded to convict the accused for offence u/s. 138 of Negotiable Instruments Act and sentenced her to pay a fine of Rs.7,60,000/- and in default of payment of fine, accused shall under 4 Crl.A. 987/2016 S.I. for three months, besides awarding compensation of Rs.7,50,000/- out of the fine amount by passing the impugned judgment dt.2.8.2016.
It is this judgment of conviction and sentence which is now under challenge by the Appellant/accused on the following grounds:-
The impugned judgment of conviction and sentence passed by the trial court is opposed to the settled principles of law, facts and probabilities of the case. The learned Magistrate erred in not appreciating the evidence on record. The judgment of the court below is based only on presumptions, surmises and conjectures which are not relevant to the circumstances of the case. Learned Magistrate grossly erred in holding the accused guilty under Sec.138 of N.I.Act. The complainant has not produced any materials nor examined any witnesses to prove the loan transaction. The complainant in her cross-examination has stated that she has received blank cheque and further improved her statement that filled cheque was given, which leads to ambiguity. The complainant has admitted that she is not having any documents to show that she was having amount of Rs.5,00,000/- with her. The learned Magistrate erred in not holding that the complainant had no sufficient means
5 Crl.A. 987/2016 and capacity to lend such huge hand loan amount. The learned Magistrate failed to notice that the complainant did not discharge initial burden of proving that her source of income to lend such huge amount. Learned Magistrate erred in not properly appreciating the oral and documentary evidence in proper perspective. Hence, prayed to set aside the judgment of conviction and sentence and to acquit the accused by allowing this appeal.
4. After filing of this appeal, notice duly served on the respondent/complainant who made her appearance through a counsel. The trial Court records have been secured.
5. Heard arguments on both sides.
6. Perused the records.
7. In the light of the contentions taken up in the memorandum of appeal, the points that arise for my determination are as follows;-
1) Whether the learned Magistrate erred in
not properly appreciating the oral and
documentary evidence available on record
in proper perspective?
6 Crl.A. 987/2016
2) Whether the learned Magistrate erred in
not appreciating the defence set up by the
accused in proper perspective?
3) Are there any grounds to interfere with the
order of conviction and sentence?
4) What order?
8. My findings on the above points are as follows:
Points No.1 and 2 :- In the Negative
Points No.3 :- Partly in the Affirmative
Point No.4: As per final Order
REASONS
9. Point No.1 to 3:- All these points are taken together for discussion for the sake of convenience and to avoid repetition of facts. Perused the contents of appeal memo, impugned judgment of conviction as well as the trial Court records.
10. It is the specific case of the complainant that herself and accused being friends are known to each other since last ten years. Under her close acquaintance the accused borrowed hand loan of Rs.5 lakhs in the month of January 2014 from her to discharge the hand loan and for marriage of her daughter, agreeing to repay the said amount within six to nine months. When the 7 Crl.A. 987/2016 complainant insisted for repayment of said hand loan amount after expiry of stipulated period, accused issued a cheque dt.1.12.2014 for Rs.5,00,000/- towards repayment of said hand loan amount. When the said cheque was presented for encashment, it came to be dishonoured for want of sufficient funds in the account of accused. Then the legal notice was issued to accused, but the accused neither replied the said notice nor paid the cheque amount. As such the complainant has prayed to take legal action against the accused for offence punishable under Sec. 138 of Negotiable Instruments Act.
11. On the other hand, the accused has set up two versions of defence. It is her first defence that the said cheque in fact was issued as security in favour of complainant towards chit fund business. It is the second defence set up by the accused that she obtained hand loan of Rs.20,000/- from complainant in the year 2000 and she had given the blank signed cheque in question as security to the complainant, who even after repayment of said loan amount, has not returned the cheque and in turn misused the same and got filed this false case stating that the cheque in question was issued towards repayment of hand loan amount of Rs.5,00,000/-.
8 Crl.A. 987/2016
12. Keeping in mind the rival contentions of both parties, I have carefully gone through the entire materials placed on record. Obviously, burden is on the complainant to prove that the cheque in question was issued towards discharge of existing loan liability. In this regard, the complainant examined herself as PW1 who in her evidence has reiterated the averments of complaint. In her evidence she got marked the cheque in question as Ex.P.1, bank endorsement as per Ex.P.2, legal notice as per Ex.P.3, postal receipt and acknowledgement as per Ex.P.4 and 5 and complaint as per Ex.P.6.
13. In the cross-examination she states that her husband is working as clerk at Vidhanasoudha and getting salary of Rs.25,000/- p.m. and an amount of Rs.10,000/- would be sufficient to meet the family expenses in a month. She used to save Rs.15,000/- every month. She does not remember the date on which she had advanced loan amount. She had kept cash of Rs.5 lakhs in the house. Her mother used to pay some amount oftenly to her and she pooled up said amount given by her mother and the savings amount and kept the same in the house with an intention to purchase property. Whenever, her parents and family members get good 9 Crl.A. 987/2016 crops, they used to give an amount of Rs.20,000/- to 50,000/- to her and she used to save the same since last 4-5 years and kept a sum of Rs.5 lakhs in the house. She had not obtained any receipt or other document from the accused for having advanced loan amount. She admits that the accused had issued blank signed cheque. In the second breath she says that accused got filed up the cheque in question and gave it to her. She denied the suggestion that she got misused the cheque which was given as security while she was running chit fund business in the year 2000. She denied other suggestions.
14. A careful appreciation of the evidence of PW1 makes it clear that the accused has not disputed the issuance of cheque as well as her signature found on Ex.P.1. She also admits service of legal notice on her. These facts indicate that the cheque in question was issued by accused towards repayment of hand loan amount. Though at one breath she admits the suggestion that the cheque in question was issued in blank, she immediately states that the cheque in question was filled up by accused and gave it to her. So, this admission with regard to handing over of blank signed cheque is stray admission and does not indicate that it was given only as 10 Crl.A. 987/2016 security towards any chit fund business. Because, if at all the cheque in question was issued in blank as security towards chit fund business, the accused ought to have replied the notice denying its averments.
15. Even otherwise the accused has not initiated any legal action against the complainant alleging misuse of cheque by complainant. Furthermore, the accused has not informed her banker to stop payment. So, these facts give rise to an inference that the cheque in question was issued towards repayment of hand loan amount. Therefore, the facts narrated by PW1 would clearly indicate that the cheque in question was issued towards repayment of hand loan amount.
16. Though it is contended that the complainant had no such capacity to lend such huge amount, the said contention is not substantiated by any material on record. Because, the complainant offered explanation stating that she used to save an amount of Rs.15,000/- p.m. besides amount being paid by her mother every year whenever they get a bumper crop. So, the say of PW1 that she pooled up an amount of Rs.5 lakhs since last 4-5 years and kept the same in the house with an intention to purchase property, is 11 Crl.A. 987/2016 believable and reasonable one. Therefore, the evidence of PW1 coupled with contents of Ex.P.1 to 6 is sufficient to believe the case of complainant. As such, learned Magistrate committed no error or illegality in appreciating the oral and documentary evidence placed on record by the complainant.
17. On the other hand, in order to rebut the presumption under Sec.138 of Negotiable Instruments Act, the accused examined herself as DW1 who in her evidence has spoken to the facts that she had borrowed an amount of Rs.20,000/- in the year 2000 by giving Ex.P.1 as security. Though she repaid that amount in the month of February 2000, the complainant has not returned the cheque and in turn got filed this false case by misusing the said cheque. In her cross-examination, she admits that she knows complainant since several years. She was staying at KSRTC quarters, 9th Block, Bengaluru from 2000-2010. Her husband is a retired BMTC Cashier. She performed the marriage of her elder daughter in the year 2011. She admits that Ex.P.1(a) is her signature. Hand writing found on Ex.P.1 does not pertain to her. She admits that the signature found on postal acknowledgement Ex.P.5 pertains to her. She denied the other suggestions.
12 Crl.A. 987/2016
18. On careful appreciation of evidence of DW1, it can be said that her evidence does not indicate that the cheque in question was issued only as security towards hand loan of Rs.20,000/-. Because, if really she had issued Ex.P.1 signed blank cheque as security while borrowing loan amount of Rs.20,000/- in the year 2000 itself, she would not have kept mum without insisting complainant to return said cheque till the year 2014. Even she has not approached police soon after the service of legal notice alleging misuse of cheque by complainant. So, the conduct of accused in not initiating any legal action, not replying the legal notice itself indicates that the cheque in question was not issued as security, but it was issued towards repayment of hand loan amount of Rs.5,00,000/-. Therefore, defence set up by the accused is not probable and believable one.
19. Furthermore, in her evidence DW1 has come up with the defence that the cheque in question was issued as security while borrowing hand loan of Rs.20,000/- in the year 2000. Whereas, in the cross-examination of PW1, it is suggested to complainant that the cheque in question was issued as security while the complainant was running chit fund business. Both these contentions are contrary 13 Crl.A. 987/2016 to each other and create doubt as to the genuineness of the defence set up by the accused. So, inconsistent defence set up by the accused in denying the case of the complainant, indicates that she intends to overcome the liability of repayment of loan amount in one or the other way, which she failed in her attempt to disprove the case of the complainant. Therefore, the accused has failed to rebut the presumption available under Sec.139 of Negotiable Instruments Act in favour of complainant.
20. Having carefully appreciated the oral and documentary evidence available on record, I am of the view that the learned Magistrate committed no error or illegality in appreciating the oral and documentary evidence available on record in proper perspective. Absolutely, there are no reasons to form opinion that the learned Magistrate failed to attach any importance to the defence set up by the accused. The learned Magistrate has appreciated the rival contentions of both the parties in proper perspective relying on the oral and documentary evidence. Therefore, the impugned judgment of conviction is in accordance with the settled principle of law, facts and probabilities.
14 Crl.A. 987/2016
21. Learned Counsel for appellant during the course of arguments has relied on the following authorities:-
1) 2014 AIR SCW 2158 in the case of Johan K.Abrahan Vs. Simon C.Abraham and another
2) ILR 2009 KAR 172 in the case of Sri A.Viswanatha Pai Vs. Sri Vivekananda S.Bhat
3) 2008 AIR SCW 738 in the case of Krishna Janardhan Bhat Vs. Dattatraya G.Hedge
4) AIR 2008(NOC) 2327 (Bombay) in the case of Sanjay Mishra Vs. Ms.Kanishka Kapoor @ Nikki @ another
5) IV (2007) BC 211 in the case of Santosh Manikrao Gundale Vs. Rameshwar Wamanrao Tak and other
6) Judgment in Appeal No.772/2016 passed by LXVII City Civil and Sessions Judge (CCH-68), Bengaluru.
I have carefully gone through the above said authorities. I do admit the proposition of law laid down in the above said authorities. But the facts involved in the case on hand are entirely different to the facts involved in the above said authorities. Therefore, the ratio laid down in the above authorities is not aptly applicable to the case on hand.
15 Crl.A. 987/2016
22. However, while imposing such fine, the learned magistrate has not assigned any reasons. Because, though the cheque in question was issued towards repayment of hand loan of Rs.5,00,000/-, the learned Magistrate has sentenced the accused to pay fine of Rs.7,60,000/- without assigning any reasons to impose fine amount in excess of cheque amount. Herein this case, the facts involved indicate that the hand loan transaction has taken place under the guise of close friendship of complainant with the accused. Admittedly, the complainant is not charging any interest on the hand loan amount. The very fact that the complainant has not obtained any receipt or document as security towards loan transaction itself indicates that the complainant had no intention to gain any profit or interest out of the loan transaction. Such being the situation, the complainant lent such loan amount to accused only to enable her to discharge her debt incurred towards the marriage of her daughter. Therefore, the complainant had no intention of making any profit by advancing such loan amount to the accused. Such being the fact, there was no reason to impose such fine amount on the accused. As such, the learned Magistrate erred in imposing fine amount in excess of cheque amount i.e., fine of Rs.7,60,000/-. Hence, the 16 Crl.A. 987/2016 impugned judgment of conviction and sentence needs to be interfered with in regard to the quantum of fine imposed on the accused.
23. Furthermore, the thing would have been different if the learned Magistrate assigned any reasons for awarding compensation in excess the cheque amount. As such, the learned Magistrate is not justified in awarding compensation in excess of the cheque amount without assigning any reasons to that effect. So, on these facts, I am of the view that the impugned order of sentence deserves to be interfered so as to modify the fine and quantum of compensation awarded to complainant. Therefore, considering the fact that the transaction has taken place between the complainant and the accused under close friendship, I feel that the accused shall be directed to pay fine of Rs.5,10,000/- instead of Rs.7,60,000/- as imposed. Hence, the impugned order of sentence deserves to be interfered only with regard to quantum of fine and compensation awarded by learned Magistrate. Hence, impugned judgment of conviction deserves to be confirmed with by modifying the quantum of sentence as observed above. Accordingly, I answer point No.1 and 2 in the negative and point No.3 partly in the affirmative.
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24. Point No.4: In view of my findings on point No.1 to 3, I proceed to pass the following:
ORDER The appeal filed by appellants U/sec. 374 of Code of Criminal Procedure is hereby allowed in part.
The impugned judgment of conviction and sentence passed by the XX ACMM, Bengaluru, in CC No.5909/2015 dt.02.08.2016 stands modified as under:-
Acting u/s. 255(2) of Cr.P.C, the accused is hereby convicted and sentenced to pay fine of Rs.5,10,000/- for the offence punishable U/Sec.138 of Negotiable Instruments Act and in default of payment of fine amount, the accused shall undergo S.I. for a period of three months.
Out of the fine amount, a sum of Rs.5,00,000/- is ordered to be paid as compensation to the complainant under Sec.357 of Cr.P.C., and remaining Rs.10,000/- shall be appropriated to the government.
Send a copy of this judgment to the lower Court along with LCR.
(Dictated to the Judgment Writer, transcribed and typed by him, corrected and then pronounced by me in the open court on this the 10th day of October, 2017) (S.K. VANTIGODI) LX Addl.City Civil & Sessions Judge, Bengaluru.
Rrt*