Bangalore District Court
Sri. Dhilip vs Sri.Annayappa on 2 December, 2021
1
Crl.A.No.1144/2019
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-56)
:Present :
Sri. Krishnamurthy R. Padasalgi,
B.Sc., LL.M., HDSE
LV Addl. City Civil & Sessions Judge,
Bengaluru.
Crl.A.No.1144/2019
DATE: THE 2nd DAY OF DECEMBER 2021.
APPELLANT :: Sri. Dhilip,
S/o. Late Muniraju,
aged about 40 years,
R/at Nagamangala Village,
Hegganahalli Post,
Devanahalli Taluk,
Bengaluru Rural
District-562110.
(Rep. By Smt. Hemavathi A., Advocate)
-V/s-
RESPONDENT :: Sri.Annayappa,
s/o. Sri.Muniyappa,
aged about 47 years,
R/at.Hegganahalli Village,
Kasaba Post, Devanahalli
Taluk, Bengaluru Rural
District-562110.
(Rep. By Sri N.C.S., Advocate)
JUDGMENT
This is an appeal under Section 374(3) of Cr.P.C. by the 2 Crl.A.No.1144/2019 appellant/accused being aggrieved by the judgment and order passed by learned XVIII A.C.M.M., Bengaluru City in C.C.No.17258/2017 dated 16.04.2019 for convicting him for the offence punishable u/Sec.138 of N.I. Act sentencing him to pay compensation of Rs.4,60,000/- to complainant/respondent with fine of Rs.10,000/- to state in default simple imprisonment for 6 months.
2. The parties will be referred as per the Rank before the trial Court.
3. The brief facts of the complainant's case is that:-
The accused is known to the complainant since past several years and using this acquaintance on 5 th May 2016 accused approached the complainant for a hand loan of Rs.3,00,000/- and the complainant has given the said amount by way of cash on 7/5/2016 to full fill his immediate financial commitments and other family necessities and promised to return the same within 6 months . After lapse of 6 months, the accused failed to repay the said amount. When the complainant demanded the accused to 3 Crl.A.No.1144/2019 repay, he issued a cheque bearing No:036061 dated 8/2/2017 for Rs.3,00,000/- drawn on HDFC Bank, Sadahalli Branch, Bengaluru Rural District. When the complainant presented the cheque for encashment, it was dishonored with an endorsement "Account closed" on 17/2/2017 & and on second time again returned with same endorsement on 13/4/2017. Thereafter the complainant issued legal notice on 27/4/2017 calling upon the accused to make payment of the dishonoured cheque amount and the said notice was duly served on the accused. In spite of service of notice, the accused has not complied the same. Hence, complainant is constrained to file this private complaint for the said relief.
4. The trial Court after taking cognizance issued the summons, the accused appeared enlarged on bail, plea was read over. The complainant was examined as P.W.1 and got marked 6 documents as Exs.P.1 to Ex.P.6 and accused was examined u/Sec.313 of Cr.P.C. his answer was recorded, the accused has led his evidence as D.W.1 and got marked Ex.D1. The learned magistrate after hearing both passed the impugned order.
6. The appellant/accused has following ground for the 4 Crl.A.No.1144/2019 appeal.
"Grounds for Appeal."
The impugned order is contrary to law, facts and materials on record. The Judgment of Trial Court is erroneous, arbitrary, incorrect and contrary to the facts and probabilities of the case. The accused has not committed any offence as alleged by the complainant. The Trial court had no jurisdiction and ought to have dismissed the complaint. There are no records such as promissory note, loan agreement and no materials to believe the version of the complainant. There is no source of income shown by the complainant for lending huge amount. Trial court should have held that there is no loan transaction. The Trial court wrongly held that are no documents produced by the accused/appellant. The Trial court is silent about non-production of documents by the complainant. The defence taken by the accused is not convincing one as per the version of the Trial court and failed to note that no source of income was shown by the complainant. The Trial court lost its sight regarding the track that the complainant has not stated about his business, assets, income and not noticed the fact that 5 Crl.A.No.1144/2019 complainant stealthily taken the cheque. The Trial court ought to have held that presumption u/s.139 of N.I Act would enure to the benefit of the complainant if he proves his financial capacity. The Trial court has erroneously and wrongly shifted the burden of proof to the accused and has not considered the cross-examination. The Trial court totally failed to prove the instant case and has not properly appreciated the oral and documentary evidence and hence prays to allow the appeal and set aside the Judgment and sentence.
7. Arguments on behalf of appellant has taken as nil with liberty to file written arguments, but failed despite giving sufficient time for filing of the same.Heard counsel for respondent.
8. Based on the above points are that arise for consideration;
1. Whether the complaint before the Trial court is maintainable in view of re-presentation of the cheque on the second occasion on 13.04.2017 through Syndicate Bank, Yelahanka Town branch, Yelahanaka?
2. Whether the appellant proves that towards the 6 Crl.A.No.1144/2019 discharge of legal enforceable debt issued cheque bearing No. 036061 dated 08.02.2017 was dishonored and after that despite of issuance of notice and expiry of stipulated time, the accused has not paid amount covered under the cheque and committed an offence punishable U/s.138 of N.I.Act?
3. Whether the judgment and sentence passed by the trial Court requires interference by this Court?
4. What order ?
9. The above points are answered as under:
Point No.1 : In the Negative.
Point No.2 : Will not arise for consideration Point No.3 : In the Affirmative Point No.4 : As per final order for the following:
R EAS ON S
10. POINT No.1 :: In this case, on perusal of the complaint and sworn statement and evidence of the complainant and P.W.1, it is alleged that on 07.05.2016, hand loan of Rs.3 lakhs was paid by 7 Crl.A.No.1144/2019 cash by the respondent herein, to the appellant/accused. In order to show that the respondent/complainant is having sources, he has produced the pass-book at Ex.P6 and contends that he has raised the housing loan and the said loan was disbursed and by coming to know about the said disbursement, the accused asked the amount. Hence on 07.05.2016, Rs.3 lakh was advanced.
11. On perusal of the passbook produced by the complainant/respondent at Ex.P6, on 07.05.2016, he has withdrawn Rs.3 lakhs, but the said amount is paid to the accused which is a matter of evidence, he says that he paid in front of Anjaneya temple in the village of the accused where no one was there. However, he contended that for repayment of the same, accused issued a cheque dated 08.02.2017 for Rs.3 lakhs drawn on HDFC Bank, Sadahalli Branch, Bengalur Rural District and it was presented through Banker of complainant/respondent on 08.02.2017. It was dishonoured with an endorsement "Account closed" on 17.02.2017. Again it was appraised to the accused/appellant herein. He requested to pay the cheque amount and told the complainant to present it after one month. Again on 03.04.2017, the cheque was 8 Crl.A.No.1144/2019 presented through the same bank which was dishonoured with an endorsement "Account closed". The complainant/respondent has cleverly suppressed the earlier dishonour memo issued by the Bank for the first instance.
12. The cheque in question is at Ex.P1, dated 08.02.2017 drawn on HDFC Bank. Ex.P2 is the account closure intimation given by the Syndicate Bank. He has stated the same thing in his deposition, but unfortunately, there is no cross-examination on this point. However, the fact remains proved. Even in Ex.P3, legal notice the same fact is stated by the complainant about the earlier presentation of the cheque on 08.02.2017 and dishonour of the same for closure of account and re-presenting of the same on 03.04.2017 and again its dishonour vide endorsement at Ex.P2 on 13.04.2017 as "account closed".
13. It is very clear that the second presentation of the cheque is only to create the cause of action to over come limitation. As per complainant's own version, the cheque dishonoured, intimation was received by him on 17.2.2017. So he should have demanded the amount within 30 days with the accused. But he has not done so. 9
Crl.A.No.1144/2019 He has not even issued legal notice. Then again he re-presented the cheque. When he re-presented the cheque at the second time, he was having full knowledge about the closure of the account. Even then complainant re-presented the same. His intention is obvious to bring the complainant within the time, such presentation is made.
14. Dishonour of the cheque for closure of the account and for insufficiency of fund stand on different footings. In cases of insufficiency of fund, there may be a justifiable cause to re-present the cheque if the insufficiency of fund is made good. But in cases of the closure of account, the account itself will not be in existence, presentation of the cheque would be futile exercise and such presentation is done to make a ground to file case which is done in this case.
15. The Hon'ble High Court of Karnataka in a ruling reported in ILR 2007 KAR 2706 it is held as under:
The dishonour of a cheque on the ground of "account closed" may be technically within the meaning of legal phrase of "insufficiency of funds". But in a fact situation both are not always identical. In the case of literal situation of insufficiency of funds in the account successive presentation may serve purpose. The drawer could be given opportunity to make good the funds in the account for honouring the cheque on the 10 Crl.A.No.1144/2019 second presentation. But in the case of "account closed", the question of successive presentation makes no sense because the account itself is not in existence, there is no possibility of having a fruitful result by successive presentation unlike in the case of "insufficiency of funds". Therefore, whenever the cheque is dishonoured on the ground of account closed, the payee cannot resort to successive presentation to save the limitation. So also in the case of dishonour of cheque on the ground that "the signature does not tally with the specimen".
In the instant case, it is substantially established by the accused that the cheque was dishonoured on 3.6.1998 on its first presentation on the ground of "Account closed". Therefore, the conduct of the complainant in representing the cheque on 25.6.1998 is an unwarranted and unnecessary exercise in law. The limitation should be computed from the date of dishonour on 3.6.1998. The legal notice issued by the complainant is beyond the period of 15 days envisaged under Section 138 N.I. Act, and is not in accordance with law. The complaint is barred by limitation. Accordingly, the order of acquittal is confirmed. Appeal dismissed.
16. Hence there is no cause of action for the complainant to present the cheque, but mechanically Trial court has taken cognizance and the matter is proceeded with. Both parties have participated in trial without going into meticulous issue of maintainability for complainant on account of non-existence of cause of action and Trial court as well as in appeal no such grounds are taken and no such observation are made. Hence this point is answered in Affirmative.
17. Point No.2 :: Although this point does not arise for consideration, as the complaint itself was not maintainable, but the 11 Crl.A.No.1144/2019 conduct of the complainant is to be seen. The complainant is BMTC employee. He has lent the amount against his service conditions. The Conduct Rules governed by BMTC Employees i.e., KSRTC (CONDUCT & CIVIL RULES,1971) Rule 13 says-
13. Investment, lending and borrowing:
(1) ---------------------------------------------- (2)---------------------------------------------- (3)----------------------------------------------- (4) (i) No Corporation servant shall, save in the ordinary course of business with a bank or a firm of standing duly authorised to conduct banking business either himself or through any member of his family or any other person acting on his benefits. (a) Lend or borrow money, as principal or agent, to or from any persons with whom he is likely to have official dealing, or otherwise place himself under any pecuniary obligation to such person, or 12
(b) Lend money to any person at interest or in a manner whereby return in money or in kind is charged or paid: Provided that an employee may give to, or accept from, a relative or a personal friend, a purely temporary loan of a amount free of interest, or operate a credit account with bona-fide tradesman or make an advance of a pay to his private employee: Provided further that nothing in this Sub-Regulation shall apply in respect of any transaction entered into by a Corporation servant with the previous sanction of the Corporation.
Hence this point is answered in Negative.
18. Point No.3 :: The Trial court has not at all meticulously appreciated the oral and documentary evidence. It creates doubt in the mind of the Appellate Court as to whether Trial court has gone through the complaint and sworn statement and 12 Crl.A.No.1144/2019 noted the fact of first dishonour on account of closure of account and second presentation and dishonour done by the complainant with an intention to bring the complaint within the limitation, or not. Such mechanical approach was not expected of. Hence the Judgment and sentence of the Trial court requires to be set aside and accordingly, this point is answered in Affirmative.
19. Hence, proceed to pass the following...
ORDER Appeal under Section 374(3) of Cr.P.C. by the appellant / accused - Dhilip being aggrieved by the judgment and sentence passed by learned XVIII Additional Chief Metropolitan magistrate, Bengaluru dated 16.04.2019 in C.C.No.17258/2017 is hereby allowed.
The Judgment and sentence passed by the learned XVIIX Additional Chief Metropolitan magistrate, Bengaluru dated 16.04.2019 in C.C.No.17258/2017 is set aside.
In consequences, complaint is dismissed.
Acting under section 255(1) of Cr.P.C Accused/Appllant is acquitted Bail bonds and surety of accused are 13 Crl.A.No.1144/2019 discharged.
Office of the Trial Court to refund the amount deposited by the appellant/accused to him.
Send copy of Judgment with TCR.
[Dictated to the Judgment Writer, transcribed by her, transcription corrected and then pronounced by me in open court, dated this the 2 rd day of December, 2021.] (Krishnamurthy R. Padasalgi) LV Addl. City Civil & Sessions Judge, Bengaluru.
14Crl.A.No.1144/2019 Judgment passed and pronounced in the open court. The operative portion reads thus.
ORDER
Appeal under Section 374(3) of
Cr.P.C. by the appellant / accused - Dhilip being aggrieved by the judgment and sentence passed by learned XVIII Additional Chief Metropolitan magistrate, Bengaluru dated 16.04.2019 in C.C.No.17258/2017 is hereby allowed.
The Judgment and sentence passed by the learned XVIIX Additional Chief Metropolitan magistrate, Bengaluru dated 16.04.2019 in C.C.No.17258/2017 is set aside.
In consequences, complaint is dismissed.
Acting under section 255(1) of Cr.P.C Accused/Appllant is acquitted Bail bonds and surety of accused are discharged.
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Crl.A.No.1144/2019 Office of the Trial Court to refund the amount deposited by the appellant/accused to him.
Send copy of Judgment with TCR.
(Krishnamurthy R. Padasalgi) LV Addl. City Civil & Sessions Judge, Bengaluru.