Bangalore District Court
Smt.Asra Lavanya vs Sri.Pukhraj on 16 November, 2018
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.K.SUBRAMANYA, B.Com., LL.M.
LXVII ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Dated this the 16th day of November 2018.
Crl. Appeal No.438/2018
APPELLANT : Smt.Asra Lavanya,
W/o.B.Asara Narendra Yadav,
41 years,
R/at.No.23, T.C.Palya,
Puttaswamy Layout,
Gas Godown Road,
Varanasi Village,
Ramamurthynagar,
Bengaluru.
Now residing at :
No.1099, 11th Block,
Janapriya Heavens,
Allalasandra,
Bengaluru.
(By Sri.K.M.S., Advocate)
.Vs.
RESPONDENT : Sri.Pukhraj,
S/o.Late Bhawarilal,
57 years,
R/at.No.1/2, 16th Cross,
Bhuvaneshwarinagar,
K.P.Agrahara, Bengaluru.
(Absent)
2 Crl.Appeal No.438/2018
JUDGMENT
This appeal is preferred by the appellant under Section 374(3) of Cr.P.C., challenging the conviction judgment passed by the learned XXII Addl. C.M.M., Bengaluru in C.C.No.13743/2014, dated:25.11.2016 as to the alleged offence under Section 138 of N.I.Act.
2. The appellant herein was the accused and respondent herein was 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. Brief facts of the case are as under:
The complainant and accused are known to each other and the accused husband was also known to the complainant. The accused husband is the proprietor of M/s.Durga Constructions. The accused approached the complainant for hand loan of Rs.23,87,800/- in order to meet their immediate financial, domestic and business commitments. The complainant in the month of July 2013, has paid the amount to the accused and her husband. The accused promised and agreed to repay the said amount within five months. For discharge of the part legal liability, the accused issued the cheque bearing No.007211, dated:18.12.2013 for Rs.14,23,500/- drawn on Canara Bank, Bengaluru. The accused has executed the hand loan agreement, dated:4.07.2013. After expiry of five months, the complainant requested for repayment, but the accused 3 Crl.Appeal No.438/2018 has not paid the amount. Hence, the complainant has presented the cheque and it has been dishonoured with an endorsement "Funds Insufficient". Thereafter, the complainant has lodged the complaint and the trial court after due process and procedure, passed the impugned order.
4. In the grounds, the appellant has contended that the trial court has not recorded the statement under Section 313 of Cr.P.C. Sufficient opportunity has not been provided to put forth the defense evidence. The delivery of judgment is vitiated under Section 353(7) of Cr.P.C. The accused and his counsel was not present at the time of judgment. The trial court has not given sufficient opportunity to cross examine the P.W.1. The notice has not been properly served and it was returned with postal shara that "Insufficient address and returned to the sendor". The accused was not residing in the said premises addressed in the legal notice. The accused came to know the proceedings when the N.B.W., was issued by the trial court. Hence, sought for allowing the appeal and to set aside the impugned order.
5. The respondent has failed to appear before the court in spite of service of notice. The lower court records were secured.
4 Crl.Appeal No.438/20186. After hearing the arguments, the points raised for determination are as under:
1. Whether the appellant has made out grounds to intermeddle with the impugned order ?
2. What Order ?
7. My findings on the above points are as follows.
POINT No.1 - In the Negative.
POINT No.2 - As per final order, for the following :
REASONS
8. POINT No.1 : It is observed by the trial court that there was familiarity between the accused and her husband with the complainant for the past several years. The husband of accused was the proprietor of M/s.Durga Constructions. Hence, both the accused and her husband approached the complainant for immediate business and financial commitments and accordingly, obtained a sum of Rs.23,87,000/- in the month of July 2013. For repayment, the impugned cheque was issued and it came to be dishonoured for the reason "Funds Insufficient". The primary document marked in 'P' series is establishing the fact as to the debt. For discharge of the same, the cheque was issued. Therefore, the trial court has drawn the presumption under Sections 118 and 139 of N.I.Act.
9. In oral as well as documentary evidence, P.W.1 has contended the same facts and relied upon the cheque, 5 Crl.Appeal No.438/2018 endorsement and the notice issued. It is clear from the notice that the accused borrowed the amount and has executed the agreement also and failed to pay the amount. The hand loan agreement Ex.P.3 also clearly depicts the financial transaction and commitment made by the accused. It is clear in the agreement that the accused and her husband borrowed the amount of Rs.14,23,500/- and for discharge of the same, cheque bearing No.007211 was issued. Therefore, the corroborative cogent evidence is justifiable and the trial court's observation is sustainable.
10. The appellant through out the proceedings evading and abstaining from the proceedings and not diligently persuading the matter. Now, the appeal is preferred after lapse of 445 days i.e., more than 1½ year. Hence, the appeal is devoid of merits. The delay caused is not sufficiently explained with cogent reasoning. The fact let to the delay is also not forthcoming in evidence or enquiry.
11. So far as to service of notice is concerned, it will come to the aid of the complainant, as there is provision under Section 27 of General Clauses Act that the notice is issued to the proper process, deemed service is to be presumed in favour of the complainant. The accused appeared before the trial court also. Therefore, at this belated stage is not supposed to contend contrary. Even before the trial court, there was several N.B.Ws., issued to secure the accused, as she was evading the process. Therefore, the impediment and hurdle posed by the 6 Crl.Appeal No.438/2018 accused to the trial does not in any way fair to consider in her favour in the appeal.
12. The evidence recorded under Section 273 of Cr.P.C., or the judgment pronounced under Section 353 of Cr.P.C., does not suffer any infirmity, as the accused is not bonafide in defending the case on merits. The trial court to avoid undue delay in disposal of the case, pronounced the judgment as per the purport of statute, circulars and directions. Hence, that cannot be appreciated as erroneous. Hence, the appeal is devoid of merits and liable to be set aside. Accordingly, I answer the Point No.1 in the Negative.
13. POINT No.2 : My finding on this point is as per following :
ORDER The Crl. Appeal filed by the appellant is hereby dismissed. Consequently, the impugned judgment passed by the learned XXII Addl. C.M.M., Bengaluru in C.C.No.13743/2014, dated:25.11.2016 stands confirmed.
Send back the records to the lower court along with the copy of this judgment.
(Dictated to the Judgment-writer, transcript thereof is corrected and then pronounced by me in the open court on this the 16th day of November 2018) (K.SUBRAMANYA) LXVII Addl.City Civil and Sessions Judge, BENGALURU.
Digitally signed by KRISHNAMURTHY SUBRAMANYA DN: cn=KRISHNAMURTHY KRISHNAMURTHY SUBRAMANYA,o=GOVERNM SUBRAMANYA ENT OF KARNATAKA,st=Karnataka,c= IN Date: 2018.11.17 17:21:49 IST