Bangalore District Court
Sudha K vs D V Govindaraju on 21 December, 2024
KABC010279182022
IN THE COURT OF THE LXII ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-63), BENGALURU.
DATED: THIS THE 21st DAY OF DECEMBER, 2024
PRESENT
Sri A. EARANNA, M.Com., LL.M.,
LXII Addl. City Civil & Sessions Judge,
Bengaluru.
CRIMINAL APPEAL No.1256/2022
APPELLANT/ Smt. Sudha K
ACCUSED : W/o Munireddy,
Junior Assistant,
K. B. S. Division Office,
K. S. R. T. C
Subhashnagar,
Bangalore-560 009.
(By Kumara L, Advocate)
-VS-
RESPONDENT/ Sri. D. V. Govindaraju
COMPLAINANT: S/o late Venkataramanaiah,
Residing at NO.637,
63rd Cross, 5th Block,
Rajajinagar,
Bangalore-560 010
(By Sri. HKR, Advocate)
2 Crl.A.No. 1256/2022
JUDGMENT
This is a criminal appeal preferred by the appellant/accused under Section 374(3) of Cr.P.C., being aggrieved by the conviction judgment passed by the learned IV Addl. Small cause Judge & ACMM, Bengaluru, dated 17.9.2022 in C.C.No.1092/2018.
2. For the sake of convenience, the appellant and respondent of the present case will be referred by their original status before the Trial Court. The appellant is the accused and respondent is the complainant before the Trial Court.
3. The brief facts of the case are as under :
The accused approached him and availed a credit facility to the tune of Rs.5,00,000/- in the year 2016. She assured that she will return the amount with interest at the rate of 1% per annum within short period. The accused borrowed a loan of Rs.5,00,000/- on 23.10.2016. Subsequently, for repayment of the said amount the accused issued a undated cheque bearing No. 023327 for a sum of Rs. 5,00,000/- drawn on Canara Bank, N.R.Branch, Bengaluru. Thereafter, the cheque was presented for collection in the account of the complainant 3 Crl.A.No. 1256/2022 at the request of accused and the said cheque was dishonored by the said Bank on 02.12.2017 on the ground that the "funds insufficient". The complainant issued a statutory notice dated 30.12.2017 under section 138 of the Negotiable Instrument Act, to the accused did not even sent any reply to the said statutory notice nor paid the amount. Since the said notice was not complied with, the above said complaint is preferred by the complainant.
4. Thereafter, the learned Magistrate has taken cognizance of the offence and recorded sworn-statement of the complainant. The Trial Court after finding a prima-facie case against the accused registered the case and issued process. The accused on service of summons appeared before the Trial Court and was enlarged on bail. Plea was read over and explained to the accused. Accused pleaded not guilty and claimed to be tired. The case was posted for trial of the accused.
5. In order to bring home the guilt of the accused, complainant examined himself as PW.1 and got marked documents at Exs.P.1 to P7. After closing the evidence of complainant's side, the accused has cross-examined the PW1. 4 Crl.A.No. 1256/2022 Accused was examined U/s 313 of Cr.P.C. statement, in which he has totally denied the entire case of the complainant. In support of his defence, accused has examined herself as DW1 and got marked Ex.D1 to Ex.D9.
6. After hearing both the parties, the learned Magistrate has convicted the accused/appellant for the offence punishable under section 138 of N.I Act and sentenced him to pay fine amount of Rs.5,05,000/-. In default of payment of the said amount the accused shall under go simple imprisonment for the period of Six months. Accused is directed to pay Rs.5,00,000/- to the complainant towards compensation. Remaining balance amount of Rs.5,000/- shall go to the state. This is the judgment challenged by the accused/ appellant.
7. Aggrieved by the impugned Judgment of the Trial Court, the appellant/accused is before this Court with this appeal. The appellant contended that the Judgment passed by the Trial Court is contrary to law and the same is liable to be set aside. The Trial Court has not considered the evidence and documents placed by the appellant. On the other hand, the Court has based on the evidence of P.W.1 has passed the 5 Crl.A.No. 1256/2022 impugned Judgment. Therefore he prays to set aside the judgment passed by the learned IV Addl., Small Cause Judge ACMM, Bengaluru. Hence, he prays to allow the appeal.
8. Trial Court record was called for. After service of notice, respondent appeared through his counsel.
9. Counsel for the appellant and respondent have filed the written arguments. Perused the records.
10. The following points arise for the consideration of the court :-
1. Whether the appellant has made out grounds to allow the appeal ?
2. What order?
11. The findings of the Court on the aforesaid points are as under :
Point No.1 :- In the Negative, Point No.2 :- As per final order for the following:
REASONS
12. POINT No.1: The counsel for the appellant filed the written arguments and argued that stating that respondent is not having any income or source of income to pay huge amount of Rs.5,00,000/-. Appeared and respondent are not known to each other.
6 Crl.A.No. 1256/2022Appellant is working in the KSRTC. There is no necessity to obtain loan from the respondent. Said cheque was issued for chit business to Kumar and Devaraj. At no point of time said cheque issued to the respondent. No notice has been served on the appellant. The trial Court has not considered the Ex.D1 to Ex.D9. Ex.D1 to Ex.D9 reveals that the respondent has filed the complaint against one Basavaiah, after full fledged trial the Court has acquitted the said Basavaiah stating that respondent is not having source of income nor income. Said documents are not considered by the trial Court. Further as per income tax rules no person can give more than Rs.20,000/- in cash. He ought to pay said amount through DD or cheque. Inspite of it respondent has stated he had paid amount of Rs.5.00 lakhs. He further argued that if a person is lending money then he must obtain document for the said amount. He further argued that respondent has stated appellant when she came to Ananda Bhavan hotel and they got to know each other. Then he has stated he had paid huge amount of Rs.5.00 lakhs. Even though he has stated no one was present. Even he has not stated in the notice nor in the complaint that appellant met in Ananda Bhavan hotel, then 7 Crl.A.No. 1256/2022 both were know to each other, for that appellant demanded amount, then he had paid huge amount of Rs.5.00 lakhs. He has taken contention that respondent is not having source of income or income to pay huge amount of Rs.5.00 lakhs, same is not considered by the trial Court. Straight away passed the impugned judgment. Therefore he prays to set aside the Judgment passed by learned IV Addl., Small Cause Judge ACMM, Court of Small Causes, Bengaluru.
13. Counsel for the respondent filed written arguments stating that appellant and respondent are known to each other. Appellant approached the respondent in the month of October-2016 stating that she wanted the amount of Rs.5.00 lakhs since she was in urgent need of said amount to clear her liability and assured that she will repay the same with interest at the rate of 1% per month. Few months she has paid the interest, thereafter appellant has not paid the amount. Respondent approached the appellant to pay the said amount, in turn appellant has issued Ex.P1 assuring that if the said cheque was issued for encashment, same will be honoured. Believing the words said cheque was presented for encashment, said cheque dishonored as 'Funds Insufficient". 8 Crl.A.No. 1256/2022 Thereafter got issued the legal notice. After service of notice appellant had not paid the amount nor replied to the said notice. After considering the entire evidence and documents Court has correctly passed the judgment. There is no reason to interfere in the judgment passed by the trial Court. Therefore he prays to dismiss the appeal filed by the appellant.
14. On perusal of the records that the complainant and appellant are known to each other. During 3 rd week of October 2016 appellant approached the respondent for hand loan of Rs.5,00,000/-, appellant was in urgent need of said amount to clear her liability. Appellant assured that she will repay the said amount with interest at the rate of 1% per month. Believing the same, on 23.10.2016 the respondent paid the amount of Rs.5,00,000/- in cash and appellant agreed to repay the same. Inspite of it she has not repaid the same. Then she has issued Ex.P1 cheque bearing No.023327 on 29.11.2017 for Rs.5,00,000/-. Based on the said pleadings it is necessary to see the evidence placed by the appellant and also documents placed by the appellant as well as respondent. 9 Crl.A.No. 1256/2022
15. On going through the defence taken by the appellant that respondent is not know to the appellant and she has not taken the amount of Rs.5,00,000/- and she has not issued Ex.P1 for discharge of debt and she has taken contention that the said cheque issued for chit business for security purpose to one Devaraj and Kumar and said cheque misused by the respondent. At the same time she has taken contention no notice has been served on her. Counsel for the appellant has argued that respondent deposed he do not know the address of the appellant and notice was issued to the appellant and he has taken contention no notice has been served on the appellant, colluding with postal authorities, it has created as notice was duly served. Therefore on this count he has taken contention to set aside the judgment and acquit the appellant.
16. As per section 138 of N.I. Act that before filing the complaint, complainant ought to issue notice calling upon the accused to pay the amount mentioned in the cheque. After issue of the notice, then cause of action arose for filing the complaint. Without issuance of the notice complaint itself is not maintainable. In the present case PW1 deposed in his evidence that he had issued notice. He deposed he has not 10 Crl.A.No. 1256/2022 know the name of the husband of the appellant is Lokeshappa and he do not know the name of the husband of the appellant. He denied he has wrongly mentioned the address of the appellant in the notice. On perusal of the Ex.P3 address of the appellant mentioned as Smt. Sudha K, Junior Assistant, KBS Division office, KSRTC, Subhashnagar, Bengaluru. As per Ex.P5 the said notice was served on the appellant and postal authority had returned postal AD that notice was duly served. Inspite of it appellant has taken contention no notice has been served on the appellant. Even though on perusal of the evidence of PW1 he has not at all put any suggestion that appellant was not residing in the address mentioned in the Ex.P3 and she was residing in some other address. When appellant has taken contention no notice has been served on her then it is her to prove were she was resided at the time of issuance of Ex.P3 and Ex.P3 was not served on her. On careful perusal of the entire evidence of PW1 he has stated that notice was issued and same was served on the appellant. It is her to establish that she was not resided in the address mentioned in the Ex.P3. She has not at all placed her address proof, election ID card, Aadhar card nor Voter ID to come to 11 Crl.A.No. 1256/2022 conclusion that she was not resided in the address mentioned in the Ex.P3 at the time of issuance of the Ex.P3.
17. At this juncture, this Court relied the following Judgments:
AIR 1992 Supreme Court 1604 Jagadish Singh- Appellant -Vs- Natthu Singh- Respondent:
(A) General Clauses Act, S.27-Notice -
Presumption of service - Refusal by addressee to accept - Notice must be presumed to have been served. Evidence Act (1 of 1872), S.114. (1996) 7 Supreme Court cases 523: State of MP Vs Hiralal and Others (A) Supreme Court Rules, 1966 -Pt.II, Or.XV, R.11 - Notice to respondent - Service of -
Addressee respondents managing to have the notices returned with postal remarks "not available in the house", "house locked" and "shop closed" respectively - Held, notices must be deemed to have been served on the respondents - Evidence Act, 1872, S. 114, III.
(e) - General Clauses Act, 1897, S.27.
High Court of Karnataka in Crl.Rev. Petn. No.469/2011 dt. 19.08.2020 T.Babu Vijayendra -Vs- Ramesh No doubt, the notice sent to the accused has been returned as per Ex.P.6 which is a returned postal cover with the postal shara 'addressee left'. In that regard, the accused got examined one Sri.N.Chandrachary as DW-4 who was stated to be the postman. The said 12 Crl.A.No. 1256/2022 witness in his evidence has stated that the registered postal article at Ex.p.6 was not delivered to the accused as the accused had already left the address mentioned on the cover. In his cross-examination, this witness also stated that, about non availability of the accused, he enquired with the neighbours in the address and came to know that accused had already left the premises.
18. On perusal of Ex.P.3, it reveals that the complainant had got issued the legal notice calling upon the appellant to pay the amount mentioned in Ex.P.1. Complainant had produced Ex.P4 and 5 Postal receipt and postal AD. For the sake of argument, assuming that no notice has been served on the accused, then it is the duty of the accused to prove that she was not resided in the said address at the time of issuance of Ex.P3. Accused has not produced any document that she was not resided in the address mentioned in Ex.P3. As per the Section 27 of General Clauses Act, 1897 and ratio laid down in the above said Judgments, the Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka have held that, if the notice was sent to the correct address, then the notice was returned as left the address, intimation delivered, refused, not claimed, door locked etc., 13 Crl.A.No. 1256/2022 then as per the above said provisions and ratios laid down in the above said Judgments, the notice is deemed as served. However, the accused has not produced any single document to come to conclusion that she was not resided in the address as mentioned in Ex.P3. Therefore, as per the above said provision, that the notice was deemed as served on the accused and the contention taken by the accused cannot be taken into consideration.
19. Appellant has taken contention that respondent is not having any source of income to income to pay huge amount of Rs.5,00,000/- and in order to prove her defence she has produced document as per Ex.D1 to Ex.D9. Based on the said documents, argued that respondent is not having income to pay huge amount of Rs.5.00 lakhs. No doubt PW1 admitted in his evidence Ex.D1 to Ex.D9. He has also admitted in the said complaint accused was acquitted by the Court by observing that respondent is not having any source of income to pay huge amount of Rs.3.00 lakhs and acquitted the accused for the said offence. Based on the said documents appellant is seeking set aside the judgment. On perusal of the evidence of 14 Crl.A.No. 1256/2022 PW1 he has stated he was working as contractor, he is doing painting contract business. He deposed he was not working under anyone. He further deposed he has not produced document to show that he was doing painting contract business. He deposed he has not obtained contractor license to do painting contract business. On perusal of the evidence of PW1 he has stated that in the year 2016 he was getting monthly income of Rs.40-50,000/-. He further deposed in all his family was getting income of Rs.1,00,000/-. He deposed he is income tax asses and all the transaction were mentioned in the IT returns. Admittedly he has not produced IT returns before the Court. On going through the evidence of PW1 it reveals that his family is getting monthly income of Rs.1,00,000/- and he is also working as contractor of painting. Apart from it he has produced Ex.P6 i.e., he was sold the property in favour of N.Govindaraju and N.Varadaraju on 15.09.2016. PW1 has stated in his evidence that he was sold the property and he has got huge amount and in the year 2016 appellant approached him to pay amount of Rs.5.00 lakhs and then paid the said amount. The evidence of PW1 and Ex.P6 clearly reveals that at that point of time respondent 15 Crl.A.No. 1256/2022 was having amount by selling the property as well as income from his family. In order to establish that he is having sufficient funds, he has produced the Ex.P7 i.e., bank statement. Said document reveals that he has getting sufficient fund in his account. Therefore from the evidence of PW1 it is clear that he is having sufficient funds to pay an amount of Rs.5.00 lakhs. PW1 has not stated in his evidence that amount was withdrawn from his account and he had paid the said amount. On the other hand he deposed he had kept amount in house, then appellant approached, then he has paid the amount in cash. Therefore from the evidence of PW1, Ex.P6 and Ex.P7 it reveals that respondent is having sufficient funds in his account by selling the property as well as from his savings. On going through the Ex.D3, he has stated in his evidence on 15.11.2015 he had paid an amount of Rs.3.00 lakhs to one Basavaiah in CC No. 17030/2016. Based on the said evidence, appellant prays to set aside the judgment. On going through the Ex.P6 on 15.09.2016 he has sold the property i.e., after filing the PCR No.3033/2016, he has sold the property. Therefore Ex.D1 to E.xD9 will not come to the aid of the appellant. However before filing the complaint 16 Crl.A.No. 1256/2022 he was sold the property on 15.09.2016. Therefore from the evidence of PW1, Ex.P6 and E.xP7 respondent has established that he is having sufficient funds, then he has paid the amount of Rs.5.00 lakhs. Moreover appellant has not placed any single document to come to conclusion that he has not issued the cheque. On the other hand she has taken contention that said cheque was not issued for discharge of debt to the respondent, said cheque was issued to one Devaraj and one Kumar for chit business for security purpose. Therefore the defence taken by the appellant that respondent is not having sufficient funds to pay amount of Rs.5.00 lakhs holds no water.
20. Counsel for the appellant argued that no person can give more than Rs.20,000/- in cash. If he had paid more than Rs.20,000/- in cash then it will violates the income tax act. Further the respondent has not placed any income tax document. Therefore the evidence of PW1 itself is clear that he has not paid the amount of Rs.5,00,000/-. No doubt as per section 29 of Income tax act, no person can give more than Rs.20,000/- in cash. If paid the amount in cash more than Rs.20,000/-, then it will be penalized under income tax act. 17 Crl.A.No. 1256/2022 However that is separate proceedings taken by the income tax authorities.
21. This Court relied on the judgment in the case of Rohitbhai Jivanlal Patel -Vs- State of Gujarat and another's case held that, "If the transaction in question was not reflected in the accounts and income-tax returns, that would at best hold the assessee or lender liable for action under the income tax laws but, if the complainant succeeds in showing the lending of amount, the existence of legally enforceable debt cannot be denied".
22. As per the records, complainant has stated he has sold his property and he got money. May be as per the I.T. rules no person can give more than Rs.20,000/- in cash, but if he had paid Rs. 20,000/- in cash then competent authority may take action against the respondent. Based on the said document, Court cannot come conclusion appellant had not taken the said loan amount and not issued the cheque for discharge of debt. Therefore the contention taken by the appellant holds no water.
18 Crl.A.No. 1256/2022
23. Appellant has taken contention that that she has not issued the cheque for discharge of debt and said cheque issued for chit security purpose and Devaraj and Kumar who were doing chit business. Respondent and appellant are the members of the said chit business. For the security purpose Ex.P1 was issued to Devaraj and Kumar. On careful perusal of the entire evidence of PW1 that documents produced by the respondent nor documents produced by the appellant, it does not reveals that chit business name, number of chit, members of chit, installment amount of chit, prize of chit has not at all brought from the mouth of respondent. Mere taking contention that said cheque was issued for chit security purpose, same was misused by the respondent. For the sake or arguments assuming that the said cheque was not issued for discharge of debt and issued for security purpose, then after filing the complaint appellant has not taken any action against the respondent stating that she has not issued Ex.P1 for discharge of debt and said cheque was issued to Devaraj and Kumar. However it is her to establish that said cheque was issued to Devaraj and Kumar, same was misused by the respondent. No doubt PW1 admitted in his evidence he know 19 Crl.A.No. 1256/2022 Devaraj and Kumar but he denied they are doing chit business. No person can do chit business without registration before competent authorities and it has its office in certain place and also members of chit groups and mode of payment should be mentioned in the document. But in this case no such documents were placed by the appellant to come to conclusion said cheque was issued for security purpose. Therefore contention taken by the appellant that said cheque was issued for chit security purpose cannot be taken into consideration.
24. Appellant has taken contention that said cheque was not filled by the appellant. The ink in signature and contents are entirely different. Said cheque was not filled up by the appellant and she has not issued the cheque for discharge of debt. For that it is her to establish how the cheque went to the respondent and if she has not issued the cheque for discharge of debt then after concluding the chit business why she has not sought the said cheque from Devaraj nor Kumar. Even she has not made any efforts to examine the said Devaraj. However as per evidence of PW1 said Kumar is no more. Under such circumstances it is her to establish that said 20 Crl.A.No. 1256/2022 cheque was issued to Devaraj for chit business and it is her to establish that cheque was not issued for discharge of debt. On perusal of the records she was working in BMTC and she is very well aware of that if the cheque was not issued for discharge of debt then she ought to take back the said cheque. In this case no such efforts made by the appellant. On going through the defence taken by the appellant she was taken hot and cold defence. Once she has taken contention she has not issued cheque for discharge of debt and said cheque was issued for chit business and at the same time she has put suggestion that she has not fill up the cheque and she has taken contention respondent himself has fill up the cheque and presented for encashment. Therefore the defence taken by the appellant that she has not issued the cheque for discharge of debt holds no water.
25. Counsel for the appellant argued that in the notice nor in the complaint respondent has not stated that he came to know appellant in Anand Bhavan hotel. In the above said proceedings before filing the complaint, complainant ought to issue notice regarding payment of the amount mentioned in the cheque. It is bring only notice to the complainant that he 21 Crl.A.No. 1256/2022 has taken the amount and issued the cheque, the said cheque was dishonoured by the banker. Apart from this notice may not contain other things i.e., where the appellant met, how the amount paid etc. it is only to bring the notice to the appellant your cheque is dishonored and to pay the amount mentioned in the cheque. Apart from it he may not write entire contents of the complaint. Therefore defence taken by the appellant cannot be taken into consideration. Appellant has taken contention in the Ex.P1 ink in the signature and ink in the date and amount are different and she has taken defence that appellant has not fill up the cheque. Appellant has taken contention Ex.P1 was not issued to the respondent. Inspite of it she has taken contention ink in signature and date and amount are differs. It is her to establish that she had not issued the cheque and signature appearing on the Ex.P1 are not belongs to her. Even though section 20 of N.I. act holder of the cheque may fill the contents and present for encashment. Then it will not vitiates the proceedings. At the same time she has taken contention Ex.P1 was not issued for discharge of debt. On the other hand she put suggestion to PW1 itself shows that she had issued the said cheque for discharge of 22 Crl.A.No. 1256/2022 debt. Therefore the defence taken by the appellant holds no water.
26. This Court has relied the decision reported in AIR 2019 SC 2446 - Crl.Appeal No.230-31 of 2019, decided between Bir Singh V/s. Mukesh Kumar dated 6.2.2019 wherein at para No.40, it has been clearly held that:
"Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt".
27. Ratio laid down in the above said judgment that who receive the cheque may right and present for encashment. With due respect to the ratio laid down in the above judgment, is applicable to the present case on hand. The respondent may fill up the cheque and present for encashment. Then burden is on appellant to prove said cheque was not issued for discharge of debt nor liability.
23 Crl.A.No. 1256/2022
28. As per section 118 and 139 of N.I. Act initial presumption on the respondent to prove that he had paid the amount, in turn appellant had not repaid the amount, he had issued the cheque, same was presented and cheque was returned for want of sufficient funds, then he ought to issue the notice calling upon the appellant to pay the amount mentioned in the cheque. Then the said presumption is to be rebutted by producing the proper and cogent evidence and documents by the appellant. Therefore considering the documents and evidence of respondent, I am of the view that there is no grounds to allow the appeal. Appellate court may interfere in the judgment of trial court when trial court has not considered the provisions of law nor evidence placed by the parties. Under such circumstances the appellate court may interfere in the judgment passed by the trial court. In the present case no such fault found in the judgment passed by the trial court. By considering the entire evidence and documents court has passed the judgment. Inspite of payment of fine amount, to escape from payment of compensation she has preferred the appeal.
24 Crl.A.No. 1256/2022
29. At this stage, this court relied the following Judgments of Hon'ble Supreme Court of India reported in 2010 AIR SC 296 Rangappa Vs Mohan wherein the Hon'ble Supreme Court has held that the presumption that the cheque was drawn in discharge of legally recoverable debt is a presumption of law that ought to be raised in every case. Therefore with due respect ratio laid down in the above said judgment, same is applicable to the present case on hand. However based on the above said judgment the appellant has not produced the rebuttal evidence. Therefore the appellant has not proved her defense. Therefore there is no reason to interfere with the judgment passed by the trial Court. Accordingly, Point No.1 is answered in the Negative.
30. POINT NO.2: In view of the discussions made on Points No.1, I proceed to pass the following:
ORDER The Criminal Appeal preferred by the appellant/accused U/Sec.374 (3) of Cr.P.C is hereby dismissed.
The impugned judgment of conviction and sentence passed by the learned IV Addl., 25 Crl.A.No. 1256/2022 Small Cause Judge ACMM, Court of Small Causes, Bengaluru, dated 17.9.2022 in C.C.No.1092/2018 is hereby confirmed.
Send back the Trial Court records along with copy of this Judgment to the Trial Court forthwith.
(Dictated to the Stenographer typed by her directly on computer, print out taken thereof, corrected and then pronounced by me in the Open Court on this the 21st day of December, 2024) sd/-
(A. EARANNA) LXII Addl.City Civil & Sessions Judge, (CCH-63), Bengaluru.