Bangalore District Court
Lilavathi vs Parthasarathi.N on 28 February, 2024
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Crl.A.No.550/2023
KABC010117262023
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-56)
:Present :
SRI. SHRIRAM NARAYAN HEGDE,
B.A., LL.M.,
LV Addl. City Civil & Sessions Judge,
Bengaluru.
Crl.A.No.550/ 2023
DATE: THE 28th DAY OF FEBRUARY 2024
APPELLANT/S SMT. LILAVATHI
W/O LATE KRISHNA SHETTY K.J.
AGED BOUT 37 YERAS,
RESIDING AT NO.6, SBI BANK ROAD,
CHIKKAHONNENAHALLI,
HASSAN - 573 128.
(Rep. by M/s. B&S Associates , Adv)
Versus
RESPONDENT PARTHASARATHI N.
S/O LATE NAGARAJU
AGED ABOUT 44 YERAS,
1ST FLOOR, LALITHAMMA VATARA
4TH CROSS, SARASWATHIPURAM,
HASSAN - 573 201.
(Rep. By Sri.B.C.N., Adv)
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Crl.A.No.550/2023
JUDGMENT
This appeal is preferred by the appellant / accused under Section 374 (3) of Cr.P.C. challenging the judgment of conviction dated 07.03.2023 passed by the learned Judge, Court of Small Causes & ACMM, Bengaluru in C.C.No.3340 / 2020.
2. By the aforesaid judgment, the trial court has convicted this appellant for an offence punishable under Section 138 of N.I. Act.
3. For the sake of convenience, the parties shall be referred to as complainant and the accused, as referred to in the trial court.
4. The brief facts which are necessary for the appreciation of the present appeal are that, the complainant and the accused are known to each other since several years. The accused is running Garments business at Hassan. Such being the case, in the month of September 2018 the accused approached the complainant and requested for loan of Rs.8,50,000/-. She promised that she will return that amount within 3 months. Believing the words of the accused the complainant paid in total Rs.8,50,000/- on different dates. 3
Crl.A.No.550/2023 After lapse of 3 months, the complainant requested the accused to repay the aforesaid amount. The accused has dodged the same from day to day by giving one or the other reasons. Finally, the accused issued cheque bearing No. 498440 dated 18.03.2020 for Rs. 4 lakhs drawn on Canara Bank, Hassan Branch. When the complainant presented the said cheque for encashment, it was dishonoured for the reason 'Funds Insufficient'. Even after service of demand notice, the accused has not paid the amount and thereby committed the offence. Hence, the complainant filed the aforesaid complaint.
5. The trial court took cognizance of the offence against the accused and after recording sworn statement of the complainant issued process to the accused.
6. The accused appeared before the trial court and was released on bail. The plea of the accused was also recorded and the case of the accused was one of total denial and claimed for trial.
7. In order to substantiate the charges levelled against the accused, the complainant himself is examined as PW1 and got marked 12 documents as Ex.P1 to P12. The 4 Crl.A.No.550/2023 statement of the accused was recorded as contemplated under Section 313 of Cr.P.C. to enable her to answer the incriminating materials available in the evidence of the complainant. The accused denied all the incriminating materials and choose to lead defence evidence. Then the case was posted for defence evidence.
8. In order to prove her defence, the accused herself examined as DW1 and not produced documentary evidence. Then the case was posted for arguments.
9. The trial court heard the augments of both sides and after considering the oral and documentary evidence came to the conclusion that the complainant has proved the guilt of the accused and consequently convicted the accused for the aforesaid offence.
10. Being aggrieved by the said order of conviction the accused / appellant has come up before this court on the following grounds.
(a) The judgment of the trial court is inconsistent with the materials evidence presented before the court and violates legal provision laid down in the applicable laws.5
Crl.A.No.550/2023
(b) The decision of the trial court is based on a flawed interpretation of factual and legal underpinnings of the case. When analyzed through lens of applicable legal status and precedent evidence on record unequivocally supports a different conclusion than that reached by the trial court.
(c) The judgment of the trial court is contrary to well established legal doctrine and jurisprudence . The trial court appears to have overlooked credible legal principles and standards firmly entrenched in the law.
(d) The trial court has not considered the entirety of the materials on record. The judgment of the trial court is one sided.
(e) The trial court has failed to consider the deposition made by the witnesses during the proceedings. The trial court has completely overlooked discrepancies in the evidence of the complainant.
(f) The trial court has erroneously came to the conclusion regarding service of statutory notice. The complainant is aware of correct and alternative address of the accused. He deliberately sent the notice to the wrong address. He tried to avoid the service of notice.
(g) The trial court has wrongly placed burden of proof on the accused. Providing negative evidence violates the settled principles of law of natural justice. 6
Crl.A.No.550/2023 With these, the appellant / accused prays for allowing the appeal, set aside the order of conviction and to acquit the accused for the alleged offence.
11. After filing of this appeal notice was issued to the respondent and he has appeared before the court through his counsel.
12. The trial court records have been secured and case was posted for arguments.
13. Heard arguments and perused the records.
14. Now the points that arise for determination are as follows.
1. Whether the trial court has committed an error by holding that the complainant / respondent has proved the guilt of the accused for the offence punishable under section 138 of NI Act?
2. Whether the judgment of the trial court suffers from any illegality or irregularity and as such calls for interference by this court in this appeal?
3. What order?
15. On the basis of the materials available on record, findings on the aforesaid points are as under.
Point No.1 : In the Negative.
Point No.2 : In the Negative.
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Point No.3 : As per final order, for the following.
REASONS
16. POINT NO.1 & 2: These two points are taken up together for consideration as the findings on one point has direct bearing on the other point.
17. In order to prove the charges levelled against this accused, the complainant himself is examined as PW1 and relied upon Ex.P1 to 12 documents.
18. In his chief examination affidavit, the complainant has reiterated and reaffirmed his contention taken in the complaint. He is cross examined at length by the learned counsel for the accused. Several questioned were put to him relating to his income. He was asked whether there was any problem to give loan through cheques. He was asked whether he had taken permission from his department to given the loan and whether he had mentioned this loan amount in his income tax returns. He has produced cheque bearing No.498440 dated 18.03.2020 at Ex.P1. The accused has admitted this cheque as well as her signature on it. 8
Crl.A.No.550/2023
19. Once the cheque and signature are admitted by the accused, the court has to presume that the said cheque was issued for repayment of legally enforceable debt. There is a presumption u/S. 139 of NI Act. In this regard, the learned counsel for the complainant has relied upon the judgment of Hon'ble Supreme Court reported in AIR 2023 SUPREME COURT 5018 (RAJESH JAIN VS.AJAY SINGH). In this judgment, the Hon'ble supreme court has held as follows.
"Section 139 of the Negotiable Instruments Act, 1881 establishes a presumption that the holder of a cheque received it for the discharge of whole or part of any debt or liability............"
20. This presumption is not an absolute presumption. It is a rebuttable presumption. The accused can rebut this presumption by producing cogent oral and documentary evidence. But her defence must be probable. If she is able to rebut the presumption, then the onus will shifts on the complainant to prove the existence of legally enforceable debt.
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21. In this case, the accused has not replied the demand notice. According to the accused she has not received the notice. As per her chief examination, her defence is that she is not acquainted with the complainant. First time, she has seen the complainant in the court. There is no transaction between them. When her husband was alive he used to give her cheque to the loan borrowed by him, as a security. One of such cheques is misused by the complainant. This is the defence of the accused. She has to prove this defence.
22. But, to prove her defence the accused has not produced any documentary evidence before the court. When her husband gave her signed blank cheque to some other person is not stated by the accused. She has not submitted stop payment instructions to the bank. She has not filed any police complaint relating to misuse of the cheque. She has not filed any private complaint. She has not even issued any notice to the person who received the cheque to return the same. She has not taken any action relating to misuse of this cheque. Under such circumstances, her 10 Crl.A.No.550/2023 defence is not probable. An ordinary prudent-man will not keep quiet if his cheque is misused by some third party. He will take some action, or atleast he will go to the police station. But, in this case, the accused has not done anything.
23. Apart from that in her cross examination she has stated that this accused is acquainted with her husband. Her cloth shop "Krishna Creations" was situated near old bus-stand. This accused was coming to that shop. These admissions of the accused itself reveals that she was acquainted with the complainant. Under such circumstances, her contention that this complainant is unknown to her is not believable one. She has admitted that this complainant has already filed a suit in O.S.No.222/2021 for recovery of money and that suit is decreed. She has admitted that in the year 2020 she was residing in the house situated at Hassan ring road. To the same address Ex.P3 notice was issued. Under such circumstances, the defence of the accused is not probable. She has failed to rebut the presumption available u/S.139 of NI Act.
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Crl.A.No.550/2023
24. On the other hand, the complainant has presented Ex.P1 cheque in time. When it is dishonoured he has issued demand notice in time. Even after her appearance before the trial court she has not paid the cheque amount. Under such circumstances, it has to be held that the accused has committed an offence punishable u/S.138 of NI Act.
25. At the time of his arguments, the learned counsel for the accused has vehemently contended that the legal notice is not sent to correct address. Hence, S.138(b) of NI Act is not complied. In support of his contention he has relied upon the judgment of Hon'ble High Court of Jammu & Kashmir in CRMC NO.381 OF 2018 (ENGINEERING CONTROL VS. BANDAY INFRATECH PVT. LTD). In that judgment, the Hon'ble High Court has held as follows.
"If statutory notice of demand was sent by respondent / complainant on wrong address, presumption of receipt of notice by petitioner / accused does not arise."
26. But, in the case in hand, the accused has failed to establish that the notice is sent to the wrong address. At the 12 Crl.A.No.550/2023 time of her cross examination, the accused has admitted that during 2020, she was residing in a house situated at 9 th Cross, Dasanakoppalu, Hassan Ring Road. She has admitted that in the R.C. book of her vehicle bearing No. KA-13/EK- 8837 Kodaramanahalli Village address is mentioned. To both the address the complainant had sent the notice. Under such circumstances, it is not possible to say that the complainant had sent notice to a wrong address.
27. The learned counsel for the accused has also relied upon the judgment of Hon'ble Delhi High Court in CRIMINAL REVISION PETITION NO.512 OF 2016 (SURESH THOMAS VS. MOD ENTERPRISES). In this judgment the Hon'ble Delhi High Court has held as under.
"......Held, mere suggestion that notices were sent at wrong addresses not sufficient as merely giving a suggestion not amount to proving of suggested fact......."
28. The aforesaid principle applies to the case in hand. Mere denial of the accused is not sufficient. Apart from that even after her appearance before the trial court she has not paid the amount. Under such circumstances, on that ground 13 Crl.A.No.550/2023 the complaint of the complainant cannot be thrown out. In his cross examination, the complainant has stated that, his monthly salary in the year 2017-18 was Rs.80,000/-. Now his yearly income is Rs.14 lakhs. This fact is not denied. Under such circumstances, his financial capacity cannot be questioned.
29. I have gone through the judgment passed by the trial court. The trial court has scrutinized the oral and documentary evidence on record and has come to the conclusion that the complainant has successfully proved the allegations made in the complaint. The trial court has rightly appreciated the evidence on record and has rightly convicted the accused for the offence punishable under Section 138 of N.I. Act. Even after re-appreciation of the entire evidence on record, I do not find any illegality or irregularity committed by the trial court in convicting this appellant / accused. Therefore, the appeal sans merit and liable to be dismissed. For the aforesaid reasons, the aforesaid points are answered in the NEGATIVE. 14
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30. POINT NO.3: In view of the findings on point No.1 & 2 above the following order is passed:
ORDER Appeal filed by the appellant / accused under Section 374 (3) of Cr.P.C. is hereby DISMISSED.
The judgment dated 07.03.2023 passed by learned Judge, Court of Small Causes & ACMM, Bengaluru City in C.C.No.3340 / 2020 is hereby CONFIRMED. Office to send back the entire records along with copy of this judgment to the trial Court forthwith. (Dictated to the Judgment Writer, transcribed by him corrected, singed and then pronounced by me in the open Court on this the 28th day of FEBRUARY 2024).
(SHRIRAM NARAYAN HEGDE), LV Addl. City Civil & Sessions Judge, (CCH-56) Bangalore City.
Digitally signed SHRIRAM by SHRIRAM NARAYAN NARAYAN HEGDE HEGDE Date: 2024.02.29 12:14:07 +0530