Bangalore District Court
H. Ramesh vs S/O Hanumanthappa on 21 April, 2022
KABC010088962018
IN THE COURT OF THE LXII ADDL.CITY CIVIL
& SESSIONS JUDGE, BENGALURU
Dated this the 21 st DAY OF APRIL, 2022
PRESENT
SRI. R. ONKARAPPA, B.Sc,L.L.B.,
LXII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU (CCH-63)
Crl. Appeal No. 516/2018
APPELLANT:/ H. Ramesh
ACCUSED S/o Hanumanthappa,
Aged about 35 years
R/at No. 483, Sri. Maruthi
Tours and Travels
8th Main road,
BEML Layout,
Basaveshwaranagar,
Behind Ayodya sagar hotel,
Bengaluru-560 079
(fictitious address given)
H. Ramesh,
S/o Hanumanthappa,
Aged about 44 years,
R/at No. 117, 12th Main,
Kamakshipalya,
Bengaluru North Taluk,
Basaveshwaranagar,
Bengaluru-560 079
(By Rajanna K M, Advocate)
2 Crl.A. 516/2018
-Vs-
RESPONDENT :/ Ramana Reddy
COMPLAINANT S/o Sidda Reddy
Aged about 42 years,
R/at No. 25/1
10th Main road,
Andanappa layout,
Vrushabavathi nagar,
Kamakshipalya,
Bengaluru-560 079
(By G.V.K, Advocate)
JUDGMENT
It occasion to heard the argument on I.A. No. 2 filed under section 391 of Cr.P.C. along with the merits of the appeal, that this Court passed an following judgment.
2. The present criminal appeal has preferred by the appellant / accused under Section 374(3) of Cr.P.C against the Judgment dated 27.02.2018 passed by the learned Small Causes and XVI ACMM, Bengaluru in C.C.No. 50/2014, wherein the said trial Court convicted the appellant for an offence punishable U/s.138 of Negotiable Instrument Act and sentenced him to pay a fine of Rs. 1,75,000/-. In default thereof, the accused shall under go simple imprisonment for six months. Out of the total a fine amount, a sum of Rs 1,70,000/- is ordered to be paid to the complainant by way of compensation. The balance amount of Rs.5,000/- shall be remitted as fine to the State.
3. The factual matrix of this appeal are that, the Accused is his close friend and both of them are well 3 Crl.A. 516/2018 acquainted with each other. The Accused approached him on 27.2.2013 and requested him to lend a sum of Rs.1,50,000/- for the purpose of improvement of "Auto Consultant Business"
and other purpose. Considering the difficulty of the Accused, he lent a sum of Rs. 1,50,000/- to the Accused on 27.2.2013 and for having received the said amount the Accused has issued 3 post dated cheques bearing No.471870 for Rs.60,000/- dt. 15.4.2013, cheque bearing No.471871 for Rs.45,000/- dt.15.4.2013 and cheque bearing No.471872 for Rs.45,000/- dt. 15.4.2013, all the 3 cheques are drawn on the ING VYSYA Bank of R.T. Nagar Branch, Bangalore and at that time, he had requested him to encash the said cheques on 15.4.2013 or on any other date subsequently assuring that by then, he would keep the amount ready. The Accused has also assured him that he would pay interest at rate of 24% p.a. on the principal amount from 27.2.2013 till the date of the realization of the cheques. That as per the instructions of the Accused, when he presented the said 3 cheques on 19.4.2013 through his banker the same came to be returned dishonored on 20.4.2013 with shara "Funds Insufficient" and immediately, when he intimated the said fact to the Accused, once again the Accused assured him to re-present the 3 cheques on 20.4.2013. Accordingly when he represented the said 3 cheques on 29.4.2013, once again they returned with shara "Funds Insufficient on 30.4.2013. When he intimated this fact to the Accused, instead of clearing the amount, he agreed to clear the amount within 3 days along with interest at 24% p.a. from 15.4.2013. Thereafter, left with no other alternative, he got issued the legal notice to the Accused 4 Crl.A. 516/2018 on 15.4.2013 calling upon him to repay the cheques amount to him within 15 days from the date of receipt of the said legal notice. Despite of service of the same, the Accused has neither replied nor has he repaid the cheques amount to him. The Complainant submits that, the dishonour and deliberate. Feeling aggrieved by the conduct of the the cheques by the Accused has been malafide, intentional Accused, he has filed the present complaint praying that the Accused be summoned, tried and punished in accordance with Sec. 138 of the Negotiable Instruments Act.
4. The accused appeared before the trial court and contested the case. To prove the guilt of the accused, the complainant examined himself as P.W.1 and got marked the documents at Ex.P.1 to Ex.P18. The accused in order to prove his defence examined himself as DW1 and got marked Ex.D1 to Ex.D6 and confronted one document as Ex.C1. The trial Court recorded the 313 Cr.P.C. statement. The trial court after heard both the parties and considered the material on record the trial court has held that the accused has committed the offence under Section 138 of N.I. Act and sentenced the accused as aforesaid.
5. Against the impugned judgment the accused has preferred the present appeal on various grounds. They are, the trial Court failed to appreciated the evidence and documents of the respondent. Though there are contradictory statement of the complainant in so far alleged date of lent the loan, the same have not been appreciated by the trial Court. Except Ex.P1 to 5 Crl.A. 516/2018 Ex.P3 cheques no other documents on side of the respondent evidencing the advancement of the loan amount of Rs. 1,50,000/- on 27.02.2013. No document on side of the respondent in evidencing the transaction between the complainant and the respondent. That Ex.P1 to Ex.P3 cheques mis used by the respondent after colluded with the chit owner Narayanaswamy and foisted flase case against to the appellant. That the legal notice in writing in compliance to section 138(b) of N.I. Act sent by the respondent to the fictitious address and also no summons was served on him to the address mentioned in the cause title of the complaint from the year 2013 to 2016. That the Trial Court failed to appreciated the Ex.D2 document in so far current address of the appellant. Though the PW1 denied the suggestion that the contents of cheques in dispute are not in the writing of the accused, but PW1 voluntarily answered he do not know as to if they written by the accused himself or he has got them written through somebody else, but he voluntarily stated the accused himself issued said cheques to PW1. This much of answer of the PW1 not appreciated by the Trial Court. When PW1 admitted the fact that he has not maintained books of accounts, his business turnover was less than taxable income and his total turnover of his business during the year of 2013 was less than Rs. 2,00,000/-, therefore, according to the accused the case of the respondent that he lent amount of Rs. 1,50,000/- to the accused cannot to be accepted. Though PW1 admitted that he has not producing any document before the Court to show that as on 27.02.2013 he had hard cash of Rs. 1,50,000/- with him and admittedly nobody witnesses the 6 Crl.A. 516/2018 transaction between the complainant and the accused. That the Trial Judge erred in appreciated the document Ex.P15 and Ex.P16, though DW1 gave much more material at before the Trial Court that cheque in question issued by him to one Narayanswamy in against to security to future installment and not issued to the complainant. The same material not appreciated by the trial Court. That the complainant have not produced any document to show his financial capacity that on 27.02.2013, the complainant had an amount of Rs. 1,50,000/-. The trial Judge mechanically drawn the presumption. That there is no proper sufficient material on record to attract the ingredients of section 138 of N.I. Act, the trial Court failed to appreciated the same. To avoid the repetition of the fact, the above all grounds have taken up together for my common discussion.
6. It is sum and substance contents of the I.A. No. 2 filed u/s 391 of Cr.P.C. is here that during the recording of the appellant's statement under section 313 of the Cr.P.C. the appellant herein has filed written statement with certified copies pertaining to CC. No. 9026/2016 consisting of mahazar drawn during the said by the Registrar of Chits (one V.D. Narayanaswamy Chti owner house was raided). The learned magistrate was pleased to take on record both the written statement and certified copies in C.C.P. No. 9026/2016, which were marked as Ex.D3 to Ex.D5 through DW.1 appellant. That the appellant was the subscriber of the chits schemes run by V.D. Narayanaswamy of Hebbal, Bengaluru. The appellant had obtained chits in the bids and for security purpose the blank 7 Crl.A. 516/2018 cheques (in dispute) for security to the future chit installments and those three blank signed cheques were misused by the respondent in collusion of the chit owner namely V.D. Narayanaswamy. That it is very much required to be brought to record the above said additional evidence by examining the chit owner i.e., V.D. Narayanaswamy and Smt. Vedavathi W.P.S.I. Hebbal Police station who filed property form wherein chit registers seized consisting of names of chit subscribers including appellant's name and his signature and the investigating officer who filed charge sheet in CC No. 9026/2016. That if this Court not allowed this application it would have great prejudice to the case of the appellant and on the other hand no prejudice would be caused to the respondent.
7 Heard arguments on both sides on merit as well as on I.A. No.2. Perused the records.
8 The points that arise for my determination are:
1. Is there substantial ground in the appeal to consider I.A. No. 2?
2. Whether the complainant established that the disputed cheque has been issued by the accused for repayment of amount?
3. Whether the trial court has committed any error in law or in fact in convicting the accused?
9 My findings to the above points are as under:-
POINT No.1 :- In the Negative POINT NO.2 :- In the Affirmative 8 Crl.A. 516/2018 POINT NO.3 :- In the Negative for the following:-
REASONS 10 POINT Nos.1 to 3: In order to ascertain the legality on the complaint, I perused the records. That the complainant presented the Cheque bearing No.471870 as per Ex.P1 dated 15.04.2013. Cheque bearing No. 471871 as per Ex.P2 dated 15.04.2013. Cheque bearing No. 471872 as per Ex.P3 dated 15.04.2013. Three Bankers memo stating "Funds Insufficient" on 20.04.2013 as per Ex.P4 to Ex.P6. Three Bankers memo issued by the bank stating "Funds Insufficient" on 30.04.2013 as per Ex.P7 to Ex.P9. Legal notice also issued by the complainant against to the accused dated 03.05.2013 as per Ex.P10. Postal receipt dated 03.05.2013 as per Ex.P11 and Ex.P12. Postal acknowledgment dated 06.05.2013 as per Ex.P13. Perused the records, the complaint came to be lodged by the complainant at before the trial court on 26.06.2013 this much of the case of the complainant have also not much disputed by the accused.
11 After careful perusal of the records, it obvious that the complainant maintained the complaint at before the trial court well in time and instrument i.e., cheque/Ex.P1 to E.xP3 present by the complainant through his banker for encashment also well in time. Thereby documents relied by the complainant valid in nature in accordance with law. As the trial court keenly appreciated all these facts in accordance with Section 138 and 142 of N.I. Act, I am of the opinion that the learned trial Judge 9 Crl.A. 516/2018 adopted a rightful procedure in taking the cognizance against to the accused and disposal of the case on merits, as such there is no infirmity on record to interfere in these aspect.
12 Core substance of the complaint that, the Accused is his close friend and both of them are well acquainted with each other. The Accused approached him on 27.2.2013 and requested him to lend a sum of Rs.1,50,000/- for the purpose of improvement of "Auto Consultant Business" and other purpose. Considering the difficulty of the Accused, he lent a sum of Rs. 1,50,000/- to the Accused on 27.2.2013 and for having received the said amount the Accused has issued 3 post dated cheques bearing No.471870 for Rs.60,000/- dt. 15.4.2013, cheque bearing No.471871 for Rs.45,000/- dt.15.4.2013 and cheque bearing No.471872 for Rs.45,000/- dt. 15.4.2013, all the 3 cheques are drawn on the ING VYSYA Bank of R.T. Nagar Branch, Bangalore and at that time, he had requested him to encash the said cheques on 15.4.2013 or on any other date subsequently assuring that by then, he would keep the amount ready. The Accused has also assured him that he would pay interest at rate of 24% p.a. on the principal amount from 27.2.2013 till the date of the realization of the cheques. That as per the instructions of the Accused, when he presented the said 3 cheques on 19.4.2013 through his banker the same came to be returned dishonored on 20.4.2013 with shara "Funds Insufficient" and immediately, when he intimated the said fact to the Accused, once again the Accused assured him to re-present the 3 cheques on 20.4.2013. Accordingly 10 Crl.A. 516/2018 when he represented the said 3 cheques on 29.4.2013, once again they returned with shara "Funds Insufficient on 30.4.2013.
When he intimated this fact to the Accused, instead of clearing the amount, he agreed to clear the amount within 3 days along with interest at 24% p.a. from 15.4.2013. Thereafter, left with no other alternative, he got issued the legal notice to the Accused on 15.4.2013 calling upon him to repay the cheques amount to him within 15 days from the date of receipt of the said legal notice. Despite of service of the same, the Accused has neither replied nor has he repaid the cheques amount to him. The Complainant submits that, the dishonour and deliberate. Feeling aggrieved by the conduct of the the cheques by the Accused has been malafide, intentional Accused, he has filed the present complaint praying that the Accused be summoned, tried and punished in accordance with Sec. 138 of the Negotiable Instruments Act. The same above all averments reiterated by the complainant who examined himself as PW1 at before the Trial Court. Even inspite of lengthy cross examination, nothing of the probable defence established through the mouth of PW1 either by direct admissions or by any of the fact which infer the defence of the accused. On the contrary, PW1 have answered to all question that the accused sought an loan one week prior to 27.02.2013, at that time the accused had came to his house. Other than to the complainant and the accused no other persons were present at the time of lend the money. That he lend the amount to the accused after he withdrawn the same from the textile cooperative bank. That the PW1 withdrawn amount of Rs. 1 lakh on 15.01.2013 and 11 Crl.A. 516/2018 Rs. 1 lakh on 20.01.2013 from the bank. He answered to the question that he had an income of Rs. 2 lakhs per annum during the year of 2013. PW1 had also some income from his native. That he carried out his business of silk weaving in a rental building. He can produce bill in respect of saree business in order to show that he is carrying on the said business. He can produce license to show the existence of his power loom. In the year of 2013, PW1 used to pay amount of Rs. 4,000/- per month in towards to house rent. Denied the suggestion that he had not lent any amount to the accused on 27.02.2013. PW1 cannot to say office address of the accused. Denied the suggestion that the accused have no business of Maruthi Tours and Travels at the place of address in which described under the cause title. Voter ID card of the accused got confronted to the PW1 and got marked as per Ex.D1. In question no notice sent by the complainant to the address mentioned in Ex.D1 documents, PW1 have answered that, the accused had not given the said address to the complainant. One Aadhar card also got confronted to PW1 as per Ex.D2. In question no notice sent by the complainant to the address mentioned in Ex.D2 documents, PW1 have answered that, the accused had not given the said address to the complainant. Denied the suggestion the accused never resided in either of the two address mentioned in Ex.P10 at any point of time. Answered to the question that the complainant not maintained any of the books of account in respect of his saree business for year of 2012-2013. That he has produced his bank statement to show that he has withdrawn the amount from his account. He do not 12 Crl.A. 516/2018 know the accused was a member to the chit transaction which was being run by one Narayanswamy at a Bar. In question, the complainant could have collected a single cheque for Rs. 1,50,000/- from the accused, PW1 answered that the accused issued three cheques to him for which he collected the same. PW1 answered that he do not know whether the contents of cheque filled by the accused or somebody else. Denied the suggestion cheque in question issued by the accused to chit owner Narayanaswamy in the year of 2008 towards the security of said chit transaction. PW1 do not know that during the year of 2015 there was a raid on house of the Narayanaswamy in respect of his illegal chit business. Denied the suggestion that the PW1 mis use the cheque in dispute so as to make wrongful gain from the accused. Admitted the suggestion there is no invoice number, full address of the party as well as signature of the party in an Ex.P15 and Ex.P16 in which person who received the sarees. Denied the suggestion that the PW1 created Ex.P15 and Ex.P16 documents.
13 On the other hand the accused also examined at before the Trial Court as DW1. In his examination in chief he deposed that he do not know the complainant. He residing at the address mentioned in Ex.D2 aadhar card since from 2008 till date. He was residing in the address shown in Ex.D1 from 2006 to 2008. Address shown as his office address in the cause title of the complaint is not his office address. He never residing in the address shown as the address of his native place in the cause title of the complaint at any point of time. He left his 13 Crl.A. 516/2018 native place in the year 1986. He was a member to a chit transaction with one Narayanaswamy of Hebbal. Cheque in question issued to said Narayanaswamy in respect of chit transaction. Except the signature available on the cheque the rest of the contents are not in the hand writing of the accused. It was a chit transaction in the year of 2008 which was commenced on 05.07.2008 and it concluded in the month of July 2011. After gap of 5 days from the conclusion of the first chit, a second chit for Rs. 2 lakhs was started in the same month. He Bid the 2nd chit in the month of March-2012 by receiving the amount by leaving Rs. 31,000/-. Thereafter a 3rd chit for Rs. 3 lakhs was started in the year 2013 by way of monthly subscription of Rs. 7500/- for 40 months. He took the bid amount in respect of 3rd chit in the month of April 2014. DW1 further deposed that in the year of 2015 as there was case filed against to Narayanaswamy he vacated his house and though he try to secure his whereabouts the accused could not succeed. The accused had given the cheques in question to Narayanswamy in the year of 2008 and thereafter he have been seeing the cheques at before the Court. In support to his defence DW1 also got produced and marked order sheet, FIR, mahazar and final report in CC No. 9029/2016, the same documents got marked as per Ex.D3 to Ex.D6 respectively. DW1 denied the contents of the complaint that on 27.02.2013, he availed the loan from the complainant for improve his auto consultancy business as false. Therefore the accused sort to dismissal of the complaint. In an cross examination, DW1 unequivocally admitted the suggestion the chques in question 14 Crl.A. 516/2018 belongs to account of the accused and signature available on the cheques belonged to him. It elicited the accused cannot to produce any document in respect of the said chit transaction. Also elicited no receipt that was being issued by the said Narayanaswamy while receiving the monthly subscription towards chit. He do not know as to if said Narayanaswamy is alive now. It further elicited that the police had not seized his cheques under mahazar which he has referred in his chief evidence at Ex.D5. Unequivocally admitted the suggestion there is no reference about to three cheques belonged to the accused in the mahazar at Ex.D5.
14 After analyzing both the case of the parties that it is necessary to record the facts which are admitted. As per the case of the accused, the accused have not much disputed that the Ex.P1 to Ex.P3 cheques not belong to him and signature available on Ex.P1 to E.xp3 cheques as per Ex.P.1(a), Ex.P2(a) and Ex.P3(a) belonged to the accused. But net case of the accused that at the no point of time the accused have availed the loan at before the complainant and had no occasion Ex.P1 to E.xP3 cheques issued to the complainant, as the same Ex.P1 to E.xP3 cheques were tendering by the accused to one Narayanaswamy who is the chit subscriber at Hebbal as a security of chit amount. On the contrary the complainant have specifically contended that the accused have approached the complainant on 27.02.2013 for loan of Rs. 1,50,000/-, as the complainant had an hard cash at his hand he lent the same to the accused as per the request of the accused. No doubt the 15 Crl.A. 516/2018 accused have specifically denied financial capacity of the complainant by raised more and more question in the cross examination of PW1. To all the question PW1 have directly answered that he got collected Rs.2.00 lakhs amount in cash which was drawn by the complainant at his bank namely Textile cooperative bank limited. As per the answer of the PW1, PW1 answered that he drawn amount of Rs. 2.00 lakhs in two dates. To substantiate the same his answer, he also got marked one S.B. account pass book maintained at Textile cooperative Bank Limited as per Ex.P14. When go through Ex.P14(a) and Ex.P14(b) one can say that the complainant have drawn on 15.01.2013 to a tune of Rs. 1,00,000/- and on 28.01.2013 to a tune of Rs. 1,00,000/-. Further to substantiate the financial capacity of the complainant, the complainant have also tendered three more documents namely cash credit bill as per Ex.P15 to Ex.P17. When meticulous examined, Ex.P15 to Ex.P17 cash credit bills the same, Ex.P15 to Ex.P17 say that the complainant have the textiles namely M/s Naveen Textiles. Further in order to establish the definate avocation of the complainant, the complainant have also got marked one certificate issued by the State Government of Karnataka as per Ex.P18. When go through Ex.P18 document, Ex.P18 have speaks that the complainant D.V. Ramanareddy is the proprietor of M/s Naveen textiles. The same Ex.P18 document speaks that M/s Naveen textiles working at the place in which address mentioned in the Ex.P18 documents. When one person have definite avocation and definite job, that it certainly one can say that such person have a definite income. True that 16 Crl.A. 516/2018 in an cross examination of PW1, PW1 answered that he is not an income tax assessee and he earned sum of Rs. 2 lakhs per annum. When one fact established that such particular person have a particular income per annum, that it No hesitation to hold that such particular person lend such loan amount lesser than to his yearly income. Therefore mere on fact of the complainant is not an tax assessee alone that ground it cannot to say that the complainant have no income at all as contented by the accused. Case on hand the amount covered under Ex.P1 to Ex.P3 cheques is sum of Rs. 1,50,000/-. On the contrary the accused have not established any of the probable defence that he tendered Ex.P1 to E.xP3 cheques to the said chit subscriber Narayanaway. With this observation that I am of the view that the complainant have successfully established his financial capacity to lend amount of Rs. 1,50,000/-.
15 Further defence of the accused that he had no occasion to raised an loan at before the complainant and issued Ex.P1 to Ex.P3 cheques to the complainant. As per further defence of the accused Ex.P1 to Ex.P3 cheques issued by the complainant to one Narayanswamy who said to be chit subscriber at Hebbal. As the accused raised an chit at before the said Narayanswamy the same Ex.P1 to Ex.P3 cheques that he offered to said Narayanaswamy as a security for the payment of chit subscription. To substantiate that an fact DW1 also got marked as many as four documents namely order sheet, FIR, mahazar and final report as per Ex.D3 to Ex.D6. According to the accused, the police have made an trap upon 17 Crl.A. 516/2018 the house of said Narayanaswamy for his illegal chit business. For that the police have registered a case against to said Narayanaswamy and filed an final report as per Ex.D3 to Ex.D6 in CC No. 9029/2016. Before accepting the contention of the accused as per Ex.D3 to Ex.D6 that it is very much necessary to ascertain whether such Ex.D3 to Ex.D6 document will make helpful to the case of accused. Therefore the cross examination portion of the Dw1 is take much significant role. When go through the cross examination of DW1.In the cross examination of DW1, it elicited through the mouth of DW1 that the police had not seized any cheque belonged to the accused under the mahazar as per Ex.D5. Further DW1 unequivocally admitted the suggestion that there is no reference about to three cheques belonged to the accused at an mahazar at Ex.D5. It is the net case of the accused that he tendered Ex.P1 to Ex.P3 cheques to one Narayanaswamy who is the subscriber of chit at Hebbal, as the police have the information about illegal chit business of said Narayanaswamy the police have registered case in CC No. 2029/2016. When the accused say that Ex.P1 to Ex.P3 cheques he tendered to said Narayanswamy and said Narayanaswamy have the illegal chit activities, it definitely it would have the occasion to the police to seize three cheques belonged to the accused also. If once same cheques not been seized by the police at Ex.D5 seizer mahazar, what is the reason behind it to the police not to seize the said three cheuqes belonged to the accused. The same especial knowledge of particular fact, as it was within the knowledge of the accused, need to explained by the accused only, otherwise 18 Crl.A. 516/2018 its inference is always against to the case of the accused. Case on hand the accused have not tendered any explanation why the police have not seized three cheques belonged to the accused under Ex.D5 mahazar, though the same factum of non freezing of three cheques belonged to the accused by the police as it elicited through the mouth of DW1. Therefore that there is no force in the argument of the appellant.
16 Another one ut most ground of the appellant at before this Court is that in compliance of section 138(b) of N. I. Act, no notice in writing properly served by the complainant upon the accused, since that at no point of time the accused reside at two address mentioned in the cause title of the complaint, as the accused reside at the address mentioned in Ex.D1 and Ex.D2. Therefore according to the accused the complainant have failed to serve the legal notice on the accused. On the other hand it is specific contention of the complainant that after cheque was bounced back he issued legal notice well in time to the accused as per Ex.P10. The same legal notice served on the accused as per Ex.P13 postal acknowledgment. It is pertinent to note here that servicing of the legal notice at Ex.P10 as per Ex.P13 postal acknowledgment not much disputed by the accused. But net defence of the accused that he was not reside at the place in which address prescribed in the cause title of the complaint. Since the accused reside at the address prescribed under Ex.D1 and Ex.D2. The same contention that here can be seen on both chief examination of DW1 and cross examination of PW1. No doubt case on record the accused successfully 19 Crl.A. 516/2018 succeed to got marked Ex.D1 and Ex.D2 document after make confront to PW1 at his cross examination. When question raised by the accused at the time of cross examined the PW1, that no notice notice sent by the complainant to the address mentioned in Ex.D1 documents, PW1 have answered that, the accused had not given the said address to the complainant. Case on hand the address shown in Ex.D1 is irrelevant to this case since as admitted by the accused himself, it was place of stay only till 2008, the period which is not relevant to the case on hand. Even otherwise the said document Ex.D1 is issued to the accused on 26.03.2009, in such circumstance, the said documentary evidence would not in any way help the accused. Likewise if according to the accused he has been residing in the address shown in his aadhaar card at Ex.D2 since 2008 till this date, when the date of its issuance is observed by the trial Court admittedly on 14.02.2016. That means the accused has collected his aadhar card with the address found on it only during the pendency of this case i.e., much after the filing of this case by the complainant and as such even this documentary evidence would not help him in any manner. Even otherwise if this Court were to believe the defence of the accused in the light of this documentary evidence at Ex.D2, there is no other corroborative piece of material made available by the accused to prove that even as on the date of the issuance of the legal notice he was residing in the address shown in Ex.D2 and not in the addresses shown by the complainant in this Case. But, in this regard when the complainant has been cross examined by the defence counsel, at one stage the accused has gone to the 20 Crl.A. 516/2018 extent of suggesting to him that the former is a total stranger to him. If this were to be so, then as rightly pointed out by the counsel for the complainant, the complainant could not be expected to know the two addresses of the accused. Moreover there is no motive attributed to the complainant so as to have necessitated him to implicate the accused in this case, if really there existed no transaction between them. Normally there would be no reason for a person to implicate any other in a case falsely, except if there be any strong motive for doing so. In the present case, there is no motive attributed by the accused against the complainant so as to have implicated him in this case.
17 Further utmost contention of the accused at before this court that, as per I.A. No. 2 filed under order 391 CrPC, that the accused is have additional evidence as he wanted to examined chit owner i.e. V.D. Narayanaswamy and Smt. Vedavathi, W.P.S.I., Hebbal Police Station as an additional witnesses to support his defence. According to the accused said V.D. Narayanaswamy and Smt. Vedavathi are the material witnesses they necessarily need to examine at before the court to probablize his probable defence and to prove the content of Ex.D3 to Ex.D6. To support his contention learned counsel for the appellant have relayed on judgment which is reported in Crl. A. No. 148/2019 by the Hon'ble Supreme Court of India. On the contrary learned counsel for the respondent vehemently argued application filed under section 391 CrPC, by the accused is not maintainable, perverse, vexatious and 21 Crl.A. 516/2018 one kind of an attempt to filled up lacuna of the defence of the accused, in which observed by the learned trail judge. Further utmost contention of learned counsel for the respondent herein that, no where in the application that the accused have asserted what due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence be produced by him at the time when the judgment appealed against was passed. Further also contention of learned counsel for the respondent that, no where in the application that the accused was stated, whether court from whose judgment the appeal is preferred has refused to admit evidence which ought have been admitted. To ascertain rivalty between the parties it is very much necessary to go through the contents of I.A. No. 2. True that I,.A,. No. 2 filed by the appellant u/s 391 of Cr.P.C. seeking permission to examine V.D. Narayanaswamy and Smt. Vedavathi, WPSI, Hebbal police station. According to the accused the same two witnesses are all material witness and he wanted to examined them to probable the very defence of the accused. When meticulous examined the I.A. No. 2 filed by the accused, the I.A. No.2 have not disclosed anything about what reason that the accused could not able to examined such proposed witness at before the Trial Court. The same I.A. No.2 is at before me in a bald manner without assigning any reasonable reason to consider the application. When further go through the application and materials available on case on record it is not case of the appellant that the Trial Court has refused to admit the evidence which ought to have been admitted. When further go through the same application it is 22 Crl.A. 516/2018 also a not case of accused that in exercise of due diligence such evidence not within his knowledge or could not, after he exercise the due diligence be produced by him at the time when the judgment appealed against was passed. Further the case against to the accused is u/s 138 of N.I. act. Case against to the accused pending from 2013, law is very much cleared by the Hon'ble Supreme Court of India in time and again the offence under section 138 of N.I. act, should be tried summarily. With this observation I am of opinion that there is no substantial force in the argument of the appellant. Further when compare the facts available on case on hand with the judgment in which the appellant herein relied have also not come to the rescue of the appellant, as the same judgment reported in the different footing than to the facts available on case on hand. Hence with due respect upon the same judgment, the same judgment not applied to the case on hand. Therefore that I hold that the application filed by the appellant i.e., I.A. No. 2 u/s 391 of Cr.P.C. have not established any prima facie and merits of the application.
18 In view of the evidence referred above, the legal presumption under Section 139 of N.I. Act has to be raised. Raising of presumption under Section 139 of N.I. Act is permissible even as per the law laid down by the Hon'ble Supreme Court in the case of Rangappa V/s. Mohan in the decision reported in (2010) 11 SCC 441 . Such presumption includes the existence of legally enforceable debt or liability.
23 Crl.A. 516/2018 Therefore, presumption raised to the cheque by the trial court cannot be interfered with.
19 On appreciation of entire evidence, this Court is of the opinion that the accused has failed to prove the fact that he has not issued cheque for discharge of legally enforceable debt. On the contrary, the complainant has proved that the accused has issued cheque/Ex.P1 to Ex.P3 for a sum of Rs. 60,000/-, Rs. 45,000 and Rs. 45,000/- respectively towards discharge of legally enforceable debt and on presentation of the cheque, it was dishonored for the reasons "Insufficien funds". Even after service of legal notice, the accused has not paid the cheques amount. Hence, in the considered view of this Court, the complainant has proved that the accused has committed an offence punishable u/s 138 of N.I. Act. Such evidence is sufficient to punish the accused for the offence under Section 138 of N.I. Act.
20 Even inspite of go through the records, there is no materials available on records to substantiate the neither of the ground which are urging by the appellant in his appeal memo and the trial court rightly appreciated the facts and law upon the case on hand, as the trial court appreciated the facts and law upon the case, I have no hesitation to agree with the observation made by the learned trial judge. In view of such an evidence on record, it is of my opinion that appellant failed to establish any illegality or error or infirmity in the judgment and sentence passed by the Learned Trial Court as such, I hold that 24 Crl.A. 516/2018 the trial court has not committed any error illegality or infirmity in convicting the accused. Accordingly, the Appeal has to be rejected. Thus, I answer point No.1 and 3 in the Negative, Point No. 2 in the Affirmative and proceed to pass the following:
ORDER The Criminal Appeal filed under Section 374(3) of Cr.P.C. is hereby dismissed.
In view of appeal is hereby dismissed I.A. No. 2 is not survive, accordingly I.A. No. 2 is hereby rejected.
Judgment and sentence dated 27.02.2018 passed by the learned Small Cause and XVI ACMM, At Bengaluru in CC No. 50/2014 is hereby confirmed.
Send the copy of the
Judgment along with the records to
the Trial court.
(Dictated to the Stenographer directly on computer, typed by her and then corrected and pronounced by me in the open court on this the 21 st day of April, 2022).
sd/-
(R. ONKARAPPA) LXII Addl. C.C. & Sessions Judge, BANGALORE CITY.