Karnataka High Court
Swetha L vs S. Vilwanathan on 3 January, 2020
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2020
BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.729 OF 2019
BETWEEN
SWETHA L.,
D/O. LATE LAKSHMAN,
AGED ABOUT 27 YEARS,
R/AT NO.89/92,
CHIKKABAZAR, SHIVAJINAGAR,
BENGALURU-560 052. ... APPELLANT
[BY SRI. PARASHURAM R. HATTARAKIHAL., ADVOCATE]
AND
S. VILWANATHAN,
S/O. SHANMUGAM,
AGED ABOUT 56 YEARS,
PRESENTLY WORKING AS MATRON,
OFFICE OF CHIEF COMMERCIAL MANAGER,
DIVISIONAL OFFICE, 1ST FLOOR,
BENGLAURU-560 023,
PREVIOUSLY R/AT 51/A,
RAILWAY QUARTERS,
YESHWANTHPURA, BENGALURU-560 022. ... RESPONDENT
[BY SMT. SUDHA D., ADVOCATE]
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 01.04.2019 (WRONGLY SHOWN AS 01.01.2019 IN THE
CAUSE TITLE) PASSED BY THE LX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, CCH-61 IN CRL.A. NO.1341/2017
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SETTING ASIDE THE JUDGMENT OF THE TRIAL COURT DATED
01.09.2017 PASSED BY THE XV ADDL. CMM., BENGALURU, IN C.C.
NO.15831/2016 AND ACQUITTING THE RESPONDENTS/ACCUSED
FOR THE OFFENCE P/U/S 138 OF THE N.I. ACT.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING,
THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the complainant in C.C. No.15831/2016 on the file of the Court of XV Additional C.M.M., Bengaluru City, against the Judgment and Order passed in Crl.A. No.1341/2017 by the Court of LX Additional City Civil and Sessions Judge, Bengaluru City, whereby the learned Sessions Judge allowed the appeal preferred by the accused and set aside the conviction and sentence passed against him and acquitted him of the offence punishable under Section 138 of the Negotiable Instruments Act [hereinafter referred to as 'N.I. Act' for short].
2. I have heard the learned counsel appearing for the appellant/complainant and the respondent/accused.
3. The brief factual matrix of the case as put-forth by the appellant herein is as under:
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The accused is working as commercial clerk, in South- Western Railways, Yeshwantpura, Bengaluru Division. He was introduced to the complainant by Sri. Anjaneyalu and Sri. C.Janakiram [P.W.2], working in the Railway Department with other six persons by name Smt. Geeta, Sri. Naresh Babu, Sri. Nataraj, Sri. Rajashekhar Reddy, Sri. Balaji Reddy and Smt. Manjula. The accused promised the complainant and others to provide them employment in the Railway Department as 'D' group employees-2014 under Ministers' quota and further assured that he knows one person by name Sri. Srinath, who is among the members of the Selection Committee for recruitment of Group-'D' Employees-2014. He even referred the complainant and others for medical examination by assuring to provide job to them. He collected Rs.5 lakhs each from the complainant and other six persons i.e., in all Rs.35 lakhs. Believing the assurance, the complainant and others with great difficulties obtained loans by pledging ornaments and gave the said amount of Rs.35 lakhs to the accused in the months of February, April and June, 2014. On 25.02.2014, the accused gave a letter/acknowledgement to the complainant towards receipt of Rs.34 lakhs [Ex.P11] and 4 returned a sum of Rupees one lakh on the same day. The accused issued two post-dated cheques. The accused however failed to keep up his promise and assurance to provide job as assured by him. When the complainant demanded the amount, the accused informed the complainant to present the said cheques. Accordingly, the complainant on 24.05.2016 presented the said cheques viz., Cheque bearing No.775554 and another cheque bearing No.037727, both dated 20.05.2016 for a sum of Rs.17 lakhs each, drawn on Syndicate Bank, Yeshwantpura branch, Bengaluru. However, the said cheques returned with a shara 'funds insufficient' on 27.05.2016 and 31.05.2016 respectively. The complainant thereafter issued a legal notice dated 08.06.2016 through RPAD., which was received by the accused. However, no reply was given to the said notice. Hence, the complaint was filed before the Magistrate on 31.07.2016.
The learned Magistrate after taking cognizance and recording the sworn statement of the complainant, issued summons to the accused. On his appearance, the accused denied the averments made by the complainant. 5
In order to establish his case, the complainant got examined herself as P.W.1 and examined another witness as P.W.2 and got marked Exs.P1 to 14. The defence did not examine any witness and mark any documents.
The learned Magistrate after considering the evidence and material on record, by Judgment and Order dated 01.09.2017 convicted the accused for the offence punishable under Section 138 of the N.I. Act and sentenced him to undergo simple imprisonment for a period of 18 months and to pay a fine of Rs.34 lakhs and in default to pay the fine amount, to further undergo simple imprisonment of 3 months.
Aggrieved by the aforesaid Judgment and Order passed by the trial Court, the accused preferred Crl.A. No.1341/2017 before the Sessions Court. The complainant also preferred Crl.R.P. No.793/2017 [which was later converted as criminal appeal], seeking enhancement of sentence.
The learned Sessions Judge by impugned Judgment and Order dated 01.04.2019 was pleased to allow Crl.A. 6 No.1341/2017 filed by the accused and dismissed Crl.R.P. No.793/2017 filed by the complainant.
The learned Sessions Judge by impugned Judgment and Order set aside the Judgment and Order of conviction and sentence passed by the trial Court. Aggrieved by which, the present appeal is preferred.
4. It is the contention of the learned counsel for the appellant that the learned Sessions Judge has failed to appreciate the findings given by the trial Court and also failed to consider the material evidence on record and wrongly come to the conclusion that the Judgment of conviction and sentence is opposed to the settled principles of law, facts and probabilities of the case. He contends that the learned Session Judge has relied upon the decision of this Court in the case of R.PARIMALA BAI VS. BHASKAR NARASIMHAIAH reported in 2018(4) AKR 379 and the said decision is not applicable to the case on hand. He submits that the accused has issued a letter dated 25.02.2014 to the complainant, which is marked as Ex.P11 and the learned Sessions Judge has misread the said letter for an agreement and by relying 7 upon the aforesaid decision, has erroneously allowed the appeal. It is his further contention that as per Ex.P11, the accused has clearly admitted that he has received a sum of Rs.34 lakhs from the complainant and six others for his personal affairs and when he has failed to return the amount taken from the complainant and others, he has issued the cheques in question. He submits that a reading of entire Ex.P11 does not indicate that to secure job, the complainant and others have paid the amount, however, the learned Sessions Judge has wrongly come to the conclusion that the complainant has paid the amount to the accused in order to secure job to the complainant and six others.
5. Learned counsel for the appellant in support of his contention relied upon the decisions of the Hon'ble Apex Court in the case of RANGAPPA VS. SRI MOHAN, reported in (2010)11 SUPREME COURT CASES 441 and in the case of ROHITBHAI JIVANLAL PATEL VS. STATE OF GUJARAT AND ANOTHER reported in AIR 2019 SUPREME COURT 1876. Further, referring to Section 65 of the Indian Contract Act, 1872 he contended that if a person has received any advantage under an agreement or contract, even if it is a void 8 agreement, then he is bound to restore it, or to make compensation for it to the person from whom he has received the amount. He would further contend that in view of the presumption available under Section 139 of the N.I. Act which is not rebutted by the accused, the lower appellate Court was not justified in reversing the findings recorded by the trial Court and therefore, seeks to allow the appeal.
Per contra, learned counsel appearing for the respondent/accused would vehemently contend that the case of the complainant herself is that she has paid the amount to the accused for securing a job in the Railway Department and therefore, now she cannot contend that the amount was advanced for personal affairs. She submits that the accused has not received any legal notice and he has also denied having issued Ex.P11. She submits that the admission given by P.W.1 itself goes to show that the signatures in Exs.P1(a), P2(a) and P11 are not identical. She submits that the complainant has failed to establish that there was any legally enforceable debt since the pleadings in the complaint if taken on its face value, does not lead to an inference that there was any legally enforceable debt and therefore, the lower 9 appellate Court has rightly relied upon the decision of this Court in R.PARIMALA BAI's Case [supra] and set aside the Judgment and Order of conviction and sentence passed by the trial Court. She further submits that even according to the complainant, the amount which was paid to the accused was given by her and six others and therefore, she alone cannot maintain a complaint. Learned counsel for the respondent by placing reliance on Section 22 of the Indian Contract Act has contended that an unlawful agreement cannot be acted upon. Accordingly, the learned counsel seeks to dismiss the appeal.
6. I have given anxious consideration to the rival submissions and also perused the material on record.
7. The points that arise for my consideration are;
1) Whether the complainant has established that the accused has committed an offence punishable under Section 138 of the N.I. Act?
2) Whether the impugned Judgment and Order passed by the lower appellate Court suffers from any infirmity and 10 whether the said Judgment and Order is liable to be interfered with?
3) What Order?
8. It is the specific case of the complainant that the accused, who working as commercial clerk, in South-Western Railways, Yeshwanthpura, Bengaluru Division was introduced to her by one Sri. Anjaneyalu and Sri. Janakiram [P.W.2], who were also working in the Railway Department. The accused promised to the complainant and six others to provide employment in the Railway Department as 'D' group employees through Minister's quota and assured that he knows one person by name Sri. Srinath, who is one of the members of the Selection Committee for recruitment of Group-'D' Employees-2014. He referred the complainant and others for medical examination. He also collected Rs.5 lakhs each from the complainant and six others amounting in all Rs.35 lakhs, to provide them employment in the Railway Department. It is the further case of the complainant that after obtaining loan, the said amount of Rs.35 lakhs was paid by the complainant and six others to the accused and in this 11 regard, on 25.02.2014 the accused gave a letter towards acknowledgement addressing the complainant towards receipt of Rs.34 lakhs and returned a sum of Rupees one Lakh to the complainant along with two post-dated cheques. Since the accused failed to provide the job as assured by him, the said cheques were presented to the bank for clearance on 24.05.2016 through her banker Axis Bank, Cunningham Road, Bengaluru. However, the said two cheques for a sum of Rs.17 lakhs each came to be dishonoured with a shara 'funds insufficient' with endorsement dated 27.05.2016 and 31.05.2016 respectively. Hence, a legal notice dated 08.06.2016 was issued, for which there was no reply though it was duly served on the accused. Hence, according to the complainant, the accused committed an offence punishable under Section 138 of the N.I. Act.
9. The complainant has got examined herself as P.W.1 and another witness as P.W.2 and got marked Exs.P1 to 14.
10. The trial Court by placing reliance on Exs.P8 to 10 viz., letters addressed by the complainant to the concerned 12 Post Master, seeking status regarding dispatch of the notice to the accused through registered post as well as the Article Tracking Report issued by the concerned postal authority and further observing that the accused has not disputed Exs.P8 to 10 and not produced any contra evidence to disbelieve and discard the evidence given by the complainant, held that the notice was duly served on the accused.
11. The learned counsel for the respondent would contend that the complainant did not furnish the correct address and the endorsement was to the effect that the door was locked and therefore, there was no proper service of notice on the accused. The same cannot be accepted as the accused has not disputed Exs.P9 and 10 in which according to Ex.P10, the endorsement is to the effect that the article was delivered. Hence, finding of the trial Court that there was service of notice to the accused cannot be found fault with.
12. The trial Court has observed that in the cross- examination of P.Ws.1 and 2, the accused has not denied regarding issue of two cheques marked as Exs.P1 and 2 for a total sum of Rs.34 lakhs. It is further observed that the 13 signatures of the accused in Exs.P1 and 2 are not disputed. The trial Court has come to the conclusion that in view of absence of trustworthy defence evidence on the part of the accused, the complainant has proved that the accused has issued Exs.P1 and 2 for a sum of Rs.34 lakhs towards discharge of legally enforceable debt. To come to the said conclusion, the trial Court has strongly relied upon the letter dated 25.02.2014 marked as Ex.P11 alleged to have been issued by the accused to the complainant.
13. As noted hereinabove, the specific case of the complainant is that the accused collected a sum of Rs.35 lakhs from the complainant as well as 6 others assuring them that they will be provided job in the Railway Department. However, the appellant has contended by placing reliance on Ex.P11 that the sum received by the accused from her and six others was for his personal affairs. The said contention raised by the learned counsel for the appellant is contrary to the pleadings before the trial Court. Even in the evidence given by the complainant by way of affidavit, it is clearly stated that the accused promised her and six others that they will be provided with employment in the Railway Department as 'D' 14 group employees under Minister's quota and assuring her so and further stating that the accused knows one person by name Sri. Srinath, who is one of the Members of the Selection Committee for recruitment to Group-'D' Employees-2014 and making such promise, collected Rs.35 lakhs from the complainant and six others. In the cross-examination of P.W.1, it is elicited from her that two signatures have been made in Ex.P11 and both the signatures differ and in Ex.P11 it is not mentioned that the amount has been taken for the purpose of securing job. But, it is stated that it is for 'personal affairs'. The accused has specifically denied issuance of Ex.P11. In the cross-examination, it was suggested to P.W.1 that the said Ex.P11 was created. Therefore, it cannot be said that the accused has admitted having issued Ex.P11. Even in the evidence of P.W.2 given by way of affidavit, it is specifically stated that the accused by assuring the complainant and six others that he would provide them job, received an amount of Rs.35 lakhs and thereafter, issued two cheques for a total sum of Rs.34 lakhs after returning a sum of Rupees one lakh.
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14. Admittedly, it is the case of the complainant that the amount was paid to the accused by the complainant and six others and therefore, the question of issuing cheques to the complainant for the entire amount does not arise. It cannot be said that there was a legally enforceable debt dischargeable against the complainant by the accused for a sum of Rs.34 lakhs as it is not the case of the complainant that she alone paid the said amount to the accused. When the accused has specifically denied having issued Ex.P11 and P.W.1 having admitted that the two signatures found in Ex.P11 differ, it is difficult to accept that Ex.P11 was issued to the complainant by the accused in connection with the legally dischargeable debt.
15. The learned counsel for the appellant has relied upon the decisions in the cases of RANGAPPA VS. SRI MOHAN and ROHITBHAI JIVANLAL PATEL VS. STATE OF GUJARAT AND ANOTHER [supra]. The said decisions are with respect to the presumption available to the complainant mandated by Section 139 of the N.I. Act. In RANGAPPA's Case [supra], it is held that the presumption mandated by Section 139 of the N.I. Act includes a presumption that there 16 exists a legally enforceable debt or liability. However, such presumption is rebutable in nature. In ROHITBHAI JIVANLAL PATEL's Case [supra] it is held that rule of presumption of innocence of the accused cannot be applied with same rigour to the offence under Section 138 of the N.I. Act, particularly where presumption is drawn against the holder receiving the cheque for discharge, the debt or liability.
16. The Hon'ble Apex Court in the aforementioned decisions has held that once the presumption of existence of legally enforceable debt drawn in favour of the complainant, then onus is shifted on the accused and unless onus is discharged by the accused that preponderance of probabilities are tilting in his favour. Further, that all basic ingredients of Sections 138, 118 and 139 of the N.I. Act are apparent on face of the record and therefore it requires to be presumed that the cheques in question were drawn for consideration and the complainant received it in discharge of an existing debt.
17. In the instant case, it is already held that the complainant has failed to establish that the cheques were 17 issued in discharge of legally enforceable debt. From the material evidence on record, it cannot be said that Ex.P11 has been issued by the accused towards legally enforceable debt. The case of the complainant itself is that the amount was paid to the accused by her and six others and in this regard two post-dated cheques were issued in favour of the complainant. The said amount was advanced to the accused for getting job in the Railway Department, wherein the accused is alleged to have assured the complainant that he would provide job under Minister's quota and he knows one of the members of the Selection Committee etc. In the facts and circumstances of the case, the lower appellate Court was justified in relying upon the decision of this Court in the case of R.PARIMALA BAI VS. BASKAR NARASIMHAIAH [supra], wherein in a similar circumstance, this Court has held that the money given to the accused by the complainant for obtaining job for her son amounts to entering into a void contract by the complainant herself, which is prohibited under Section 23 of the Indian Contract Act. Cheques issued by the accused for repayment of such amount is not legally enforceable debt. Even in the present case, there are absolutely no allegations 18 whatsoever that the accused took the money as a loan or debt or as a liability at any point of time and the same is not established by the complainant. Even according to the complainant, for the purpose of securing job in the Railway Department, she paid a sum of Rs.35 lakhs to the accused by herself and six others and as the accused failed to secure the job as assured, he issued two post-dated cheques in question. The same cannot be said to be a legally enforceable debt even if it has to be accepted.
18. Another leg of contention of the learned counsel for the appellant is that in view of Section 65 of the Indian Contract Act, when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from whom he received it. In the first instance, the case of the complainant itself is that the entire amount has not been paid by her. On the other hand, the sum of Rs.35 lakhs was paid by herself and six other persons. Be that as it may, under Section 23 of the Indian Contract Act, if any contract is forbidden in law etc., and the court regards it as immoral, or opposed to public policy, then the said 19 agreement cannot be termed as lawful and in the said cases, the consideration or object of an agreement will be unlawful and such consideration is unlawful.
19. For the foregoing reasons and having examined as to whether the accused has committed an offence punishable under Section 138 of the N.I. Act, I am of the considered view that from the material on record, the complainant has failed to establish that the accused committed an offence punishable under Section 138 of the N.I. Act. Points raised are answered accordingly. Hence, I pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Ksm*