Bangalore District Court
Nila Matuthaiah vs M. Shankar Reddy on 26 August, 2021
1
Crl.A.No.1175/2015
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.1175 / 2015
DATE: THE 26th DAY OF AUGUST 2021.
APPELLANT :: Nila Matuthaiah
S/o Anjanappa
Aged about 42 years,
Residing at House No. 10/24,
S.N. Puram, Kalyan Durgam Road
Ananthapura Town,
Ananthapura District,
Andhra Pradesh.
(Rep. By Sri.K.N.S.R, Advocate)
-V/s-
RESPONDENT :: M. Shankar Reddy
Aged about 40 years,
R/o Motakapalli Village,
Gulur Post, Bagepalli Taluk,
Chickballapura Dist.
(Rep. by Sri.N.C.S.. Adv.)
JUDGMENT
This is an appeal under Section 374(3) of Cr.P.C. by the appellant/accused being aggrieved by the judgment and 2 Crl.A.No.1175/2015 order passed by learned XV A.C.M.M., Bengaluru City in C.C.No.4668/2014 dated 17.08.2015 for convicting him for the offence punishable u/Sec. 138 of N.I. Act sentencing him to pay compensation of Rs.7,50,000/- to complainant / respondent with fine of Rs.10,000/- to state in default simple imprisonment for 6 month.
1. The parties will be referred as per the Rank before the trial Court.
2. The complainant is carrying Poultry business under the name and style of M/s.Kala Poultry Farm since 1999. The business establishment of the complainant is situated at Motakapalli illage, Gulur post, Bagepalli Taluk, Chickballapur District. Complainant is also having dealership of sale of feeds and birds/chicks through Sneha feeds and Sri.Rohini Minerals Pvt.Ltd. Complainant is having business at Bangalore, Hyderabad and all over Karnataka and Andhra Pradesh. Accused is a regular customer of the complainant. Accused had purchasing chicks/broilers from the complainant on credit basis for the last two years. Accused is running chicken Center in the name and style of M/s.Kalyani Chicken Center, Opp: HP Petrol Bunk, Ramanagara Main Road, 3 Crl.A.No.1175/2015 Ananthpura Town, Andhra Pradesh. The complainant had supplied the broilers/chicks often and often at the request of the accused. Since January 2013, accused had purchased poultry amounting to Rs.21,50,000/-. Out of the said amount, accused had repaid a sum of Rs.14 lakh as part payment. For balance amount of Rs.7,50,000/-, accused got issued a cheque drawn on Axis Bank, Ananthapura branch, Andhra Pradesh. It is further case of the complainant that when the cheque was presented for encashment through M/s.Dhanalakshmi Bank, Gandhinagar branch, Bangalore- 560 009, and it was dishonoured for the reason "FUNDS INSUFFICIENT". In this regard, bank had issued memo 20.11.2013. Thereafter, complainant got issued legal notice on 11/12/2013, demanding for repayment of the amount. The notice sent by RPAD to the residential address as well as business address of the complainant. Though the accused had received the notice neither reply was issued, nor demand was met with. Hence the complaint.
3. The trial Court after taking cognizance issued the summons, the accused appeared enlarged on bail, plea was 4 Crl.A.No.1175/2015 read over. The complainant was examined as P.W.1 & 2 and got marked 17 documents as Exs.P.1 to Ex.P.17 and accused was examined u/Sec.313 of Cr.P.C. and his answers were recorded, the accused has not led his evidence and no documents were marked. The learned magistrate after hearing both passed the impugned order.
4. The parties will be referred as per rank held by them before trial court. The appellant/accused has following grounds for the appeal.
That impugned judgment is opposed to law, facts and materials, the Court below erred in convicting the accused. The trial court erred in taking cognizance of the offence and there is clear non-joinder of parties. The trial court failed to notice that none of the companies transacted with the parties to the litigation and there is also no pleadings in this regard. The respondent / complainant has failed to prove the transaction between himself and the accused / appellant and the respondent has no financial capacity to lend the money. 5
Crl.A.No.1175/2015 There is every doubt regarding the transaction for the reason , it is clear from the complainant that he has supplied in the month of January 2013 and the cheque is dated November 2013. The burden lies upon the complainant that the guilt of the accused has to be proved beyond all reasonable doubt and the trial court has failed to notice of this fact. The trial court has erred in holding that the cheque is issued by the accused / appellant for discharge of legally enforceable debt, though the complainant failed to prove the said fact.
5. After registration of appeal, notice was issued to respondent/Complainant, respondent appeared through counsel, trial court records were secured, heard counsel for the appellant and respondent.
6. Based on the above points are that arise for consideration;
1. Whether the appellant / accused proves that there was no transaction between 6 Crl.A.No.1175/2015 himself and the complainant / respondent and the cheque in question was not issued for discharge of legally enforceable debt?
2. Whether the Complainant / respondent proves that the cheque was issued on 05.11.2013 discharging of legally enforceable debt and it was dishonoured and statutory legal notice was sent after the service of notice, the appellant / accused did not pay the amount covered under the cheque and committed an offence punishable under Section 138 of N.I. Act.
3. Whether the judgment and sentence passed by the trial Court requires interference by this Court?
4. What order ?
7. The above points are answered as under:
Point No.1 : In the Negative Point No.2 : In the Affirmative Point No.3 : In the Negative 7 Crl.A.No.1175/2015 Point No.4 : As per final order for the following.
REAS O NS
8. POINT No.1 & 2:: The learned counsel for the appellant firstly contends that the trial court has not applied its mind on the material on record. The trial court itself has observed in the judgment at para No.12 that the complainant has not produced any documents for having supplied Chicks/Broilers and no record to show that Chicks worth Rs. 21,50,000/- were supplied but strangely has come to the conclusion that the accused has not discharged burden and not held that accused not stated anything about the cheque and passed impugned order. He has again relied upon the ruling reported in 2014 (1) DCR 27 (M/S TOTAL FINAELF INDIA LTD. VS. RASHMI PARNAMI), wherein it is held that the liability of paying for the purpose of goods is civil in nature. He has also further relied upon the ruling reported in 2014 (1) DCR 184 (SHIRISH VASANT BORKAR VS. SHRI VIJAYKUMAR K. PILLIENKAR FADKE AND 8 Crl.A.No.1175/2015 ANOTHER), 2009 (2) DCR 302 (VEENA RANI CHHABRA VS. MANJU ROHIDA), with regard to rebutting presumption by the accused that the accused need not step into the witness box. He has also relied upon the ruling reported in 2005 (2) DCR 675 (M/S NEW TECH PESTICIDES LIMITED VS. M/S PAVANB COMMERCIAL CORPORATION AND ANOTHER) (ANDHRA PRADESH) with respect to appreciation of evidence and issuance of cheque in advance against non-enforceable liability and also relied upon the ruling reported in 2009 (1) DCR 422 (BINOD KUMAR LALL VS. STATE OF JHARKHAND AND ANOTHER), wherein same principles are applied and also relied upon the ruling reported in 2009 (1) DCR 455 (TEJARAM RAMNATH MOURYA VS. RAMASREYT HARIDAS SONI AND ANOTHER) with respect to non- adducing cogent evidence for payment of huge loan and contends that the trail court has totally erred.
9. Counsel for appellant/accused has further draws the attention of the court to Ex.P16 and P17 which are alleged 9 Crl.A.No.1175/2015 account and ledger extract and contends that they are not proved and also relied upon the rulings reported in (2010) 11 SUPREME COURT CASES 441 (RANGAPPA VS. SRI MOHAN) AND CRIMINAL APPEAL NO. 230-231 OF 2019 (SUPREME COURT) (BIR SINGH VS. MUKESH KUMAR). He also draws the attention of the court to para No.11 of the judgment with regard to the observation of the trial court on Ex.P16 and P17 saying that they are not conclusive with regard to supply of Chicks and Broilers to the extent of Rs.21,05,000/- and conclusive and legitimate with regard to receipt of Rs. 14 lakhs. Hence, contends that the order of the trial court is not sustainable. He also further draws the attention of the court to Ex.P9 and P10 which are returned stamp postal envelope wherein notice was not served and also Ex.P8 which is courier receipt wherein the signature of the accused / appellant is not found which is admitted by PW 1 and also on the endorsement of cheque at Ex.P1 saying that it is limited to Rs. 50,000/- but amount of Cheque is Rs 7,50,000/-, this crates the doubt of instrument. 10
Crl.A.No.1175/2015
10. Per contra the learned counsel for the respondent / complainant supported the judgment of the trial court and relied upon the ruling reported in (2010) 11 SUPREME COURT CASES 441 (RANGAPPA VS. SRI MOHAN) AND CRIMINAL APPEAL NO. 230-231 OF 2019 (SUPREME COURT) (BI8R SINGH VS. MUKESH KUMAR).
11. In order to appreciate the rival arguments, :-firstly with regard to the cheque which is argued by the learned counsel the said cheque in question is at Ex.P1. The accused / appellant has not adduced any evidence before the trial court and he can rebut the presumption available just by relying upon the evidence of the complainant on preponderance of probabilities about non-existence of legal debt.
12. The said cheque is drawn on Axis Bank dated 05.11.2013. It bears the endorsement "Payable at par at all branches of AXIS Bank in India. Not to exceed Rs.50,000/- for clearing payments at outstation centres". So words itself shows that the said cheque will be honoured at par at the branches of AXIS Bank not exceeding Rs.50,000/- but in this 11 Crl.A.No.1175/2015 case, the cheque was sent for clearance through Dhamnalakshmi Bank, which has issued endorsement of 'Insufficient of Funds', which is at Ex.P2. So the said endorsement will not help the appellant/accused because Ex.P1 cheque was through clearing, not presented at par.Moreover insufficiency of funds is the cause of dishonour and not on other aspect.
13. Coming to the alleged liability and the observation of the trial court :-specific case of the respondent / complainant which is made out is that he is dealing with Broilers and Chicks in the name of Kalyani chicken Center. He supplied the same often to the accused and since January 2013 such purchase was made by the accused / appellant. The total due was Rs.21,50,000/- out of which the accused has paid Rs. 14 lakhs and for the remaining Rs.7,50,000/- he has issued cheque which is subject matter of this complaint.
14. In this connection, available evidence is to be seen. PW 1 who is the complainant/ respondent has deposed as per the complaint and in the cross examination various questions 12 Crl.A.No.1175/2015 are asked with regard to non-production of documents for running the poultry business maintenance of day book, ledger book, sales bill book etc. Non-production of the returns, non- production of checking dealer from Sneha Feed and Rohimi Minerals. But these do not constitute rebuttal of presumption. Although the complainant has stated that he has opened the bank account and making turnover of Rs.50 to 60 lakhs. The said fact also do not help the accused.
15. Complainant/Respondent has not produced any document about the payment of Rs.14 lakhs said to have been paid by the accused. But that does not mean that there was no liability at all. It was admitted by him in the cross that over phone all the transaction were going on. So this admission goes to show that trust and confidence in between the parties in commercial transaction. The accused used to telephone and complainant used to send Chicks and Broilers. Amount due was paid in cash. It appears in many transactions payment through cash predominate over the field. It appears this is also such an instance. 13
Crl.A.No.1175/2015
16. Later on the complainant has produced licence at Ex.P11 given by Nallappa Reddypalli Gramana Panchayat to run the business with electric bills and receipts at Ex.P12 to P14. But he running business cannot be negated because one of the factors which was taken as grounds for appeal is 'none of the companies transacted among have been party to the litigation,', and there is no averments representing the company and regarding the position of the accused. So this ground for appeal hows that the transaction was evident.
17. Whether the complainant is running the company / firm/ proprietorship etc., was not at all put to him in cross. The same is fate of the alleged company / firm or proprietorship concerned of the accused. Ex.P16 and P17 are produced afterwards when the case is over. The trial court observed that these documents at Ex.P16 & P.17 do not show about the due of Rs.21,50,000/- worth transaction entered. But the trial court appears not properly scrutinized it. The name of the accused and others is mentioned with quantity supplied. Although there is no corresponding calculation 14 Crl.A.No.1175/2015 about the total kgs of Chicks and Broilers supplied to the accused and rate per kg. That does not mean that there was no transaction at all, therefore there is no rebuttal of the presumption by the accused includes even on probability.
18. Appeallant/Accused has not shown that there was no occasion for him to issue the cheque for any enforceable liability. But in this case in the cross examination PW 1 no single suggestion is made the circumstances and facts which have culminated in getting the possession of the cheque by the appellant/Accused. No circumstances are stated or suggested by the accused. Even for the 313 Statement accused / appellant has denied the entire questions by simply saying "False" without explaining as to how the complainant / respondent got the possession of the cheque belonging to the account of the appellant / accused. The accused has not denied his signature.
19. In ruling reported in Rohitbhai Jivanlal Patel Vs State of Gujarath and Another in (2019) SCC On Line SC 389 equivalent AIR 2019 SC 1876 at paragraph No.14, it is held 15 Crl.A.No.1175/2015 that:
"........The said cheques were presented to the Bank concerned within the period of their validity and were returned unpaid for the reason of either the balance being insufficient or the account being closed. All the basis ingredients of Section 138 as also of Sections 118 and 139 are apparent on the face of the record. The Trial Court had also consciously taken note of these facts and had drawn the requisite presumption. Therefore, it is required to be presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e., the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the accused-appellant to establish a probable defence so as to rebut such a presumption...."
20. As observed earlier the mere denial of accused/appellant is not suffice, he has to adduce the positive evidence to rebut the presumption. In the same Rohitbhai Jivanlal Patel Vs State of Gujarath and Another ruling at para No.16, it is held that:
".........On the aspects relating to preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the Court to conclude either that the consideration did not exist or that its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. This Court has, time and again, emphasized that though there may not be sufficient negative evidence which would be brought on record by the accused to discharge his burden, yet mere denial would not 16 Crl.A.No.1175/2015 fulfill the requirements of rebuttal as envisaged under Section 118 and 139 of the NI Act....."
21. Therefore, on facts that the accused has not rebutted the presumption even on preponderance of probabilities.
22. Another aspect which is argued by the learned counsel for the appellant /accused is with regard to service of notice. Firstly, legal notice sent are returned unserved which are at Rs.P9 and P10 postal receipts are marked at Ex.P4 to P9. Ex.P3 is office copy of the legal notice and Ex.P15 is the reply given by the postal department for the complaint given by the counsel for the complainant / respondent who has asked the status of the legal notice sent by RPAD. The reply shows that the item booked bearing No. RK140732298IN on 11.12.2013 is delivered on 04.12.2013 and corresponding postal receipt is found at Ex.P6. The said receipt discloses that it was address to accused / appellant himself. This clearly shows that on 04.12.2013 the accused / appellant has received the legal notice. With regard to courier receipt is concerned, PW 1 admits in cross that it is the signature of 17 Crl.A.No.1175/2015 one Manager ,in that event it is also proper serviced of notice. Hence, there is no force in the submission that the legal notice was not served.
23. Hence, for all the above reasons, point No.1 is answered in the Negative and point No.2 is answered in the Affirmative.
24. POINT NO. 3: The trial Court has properly appreciated the oral and documentary evidence available, rightly drawn the legal presumptions and applied the same and passed the judgment and sentence in accordance with law, it cannot be find fault with. Hence, this point is answered in Negative.
25. POINT NO.4: In view of foregoing discussion and findings recorded on point No.1 to 4, the following.
ORDER Appeal under Section 374(3) of Cr.P.C. by the appellant / accused being aggrieved by the judgment and sentence passed by learned XV Additional Chief 18 Crl.A.No.1175/2015 Metropolitan Magistrate, Bengaluru dated 17.08.2015 in C.C.No.4668/2014 is hereby dismissed.
In consequences, judgment and sentence passed by learned XV Additional Chief Metropolitan Magistrate, Bengaluru dated 17.08.2015 in C.C.No.4668/2014 is confirmed.
Office to send back the trial Court records with copy of this judgment.
[Dictated to the Judgment Writer, transcribed by him, transcription corrected and then pronounced by me in open court, dated this the 26th day of August 2021] (Krishnamurthy R. Padasalgi) LV Addl. City Civil & Sessions Judge, Bengaluru.
19Crl.A.No.1175/2015 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 being aggrieved by the judgment and sentence passed by learned XV Additional Chief Metropolitan Magistrate, Bengaluru dated 17.08.2015 in C.C.No.4668/2014 is hereby dismissed.
In consequences, judgment and sentence passed by learned XV Additional Chief Metropolitan Magistrate, Bengaluru dated 17.08.2015 in C.C.No.4668/2014 is confirmed.
Office to send back the trial Court records with copy of this judgment.
(Krishnamurthy R. Padasalgi) LV Addl. City Civil & Sessions Judge, Bengaluru.