Bangalore District Court
Sri.Narayanaswami vs Sri.Anand B on 20 June, 2016
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.CHANDRASHEKHAR MARGOOR, B.Sc., LL.B.(Spl)
LXVII ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Dated this the 20th day of June, 2016
Crl. Appeal No.802/2015
APPELLANT : Sri.Narayanaswami,
S/o.Yellappa,
34 years,
R/at.No.2, 3rd Cross,
Janatha Colony,
Hulimavu, Bengaluru.
(By Sri.N.H.C., Advocate)
.Vs.
RESPONDENT : Sri.Anand B.
S/o.Late Basappa,
R/at.No.105, Ward No.188,
Near Dharmaraya Swami Temple,
Nadu Bheedhi, B.G.Road,
Bilekahalli, Bengaluru.
(By Sri.J.B.M., Advocate)
JUDGMENT
This appeal is preferred by the appellant challenging the conviction judgment passed by the learned XIX Addl. C.M.M., Bengaluru in C.C.No.25428/2012, dated:29.04.2015.
2. The appellant herein was the accused and respondent herein was the complainant before the trial court. For the 2 Crl.Appeal No.802/2015 sake of convenience, parties would be referred to by the ranks they were assigned before the trial court.
3. Brief facts of the case of the complainant are as under:
The accused had approached the complainant and borrowed the hand loan of Rs.4,80,000/- from the complainant to meet his financial necessities and agreed to repay the said amount within one month. When the complainant demanded for repayment of the loan amount after the stipulated period, the accused had issued a cheque bearing No.810867, dated:11.06.2012 for Rs.4,80,000/- drawn on Vijaya Bank, Mulki Sunder Ram Shetty Nagar, Bengaluru. When the complainant presented the said cheque through his banker namely ING Vysya Bank Ltd., C.K.C.Garden, Mission Road, Bengaluru for encashment, the said cheque came to be dishonoured with an endorsement as "Funds Insufficient", dated:12.06.2012. Hence, the complainant got issued the legal notice, dated:2.07.2012 to the accused calling upon him to repay the cheque amount and in spite of service of the legal notice on 4.07.2012, the accused has neither replied to the said notice nor paid the amount. Hence, the complainant was constrained to file the complaint against the accused under Section 200 Cr.P.C. r/w. Section 138 of N.I.Act.
The learned XIII Addl. C.M.M., Bengaluru after taking cognizance and recorded the sworn statement of the complainant and registered the case as C.C.No.25428/2012 and issued summons to the accused. The accused appeared 3 Crl.Appeal No.802/2015 before the court and engaged his advocate and he was enlarged on bail. Thereafter, the plea was recorded and the accused pleaded not guilty and claims to be tried. Thereafter, the matter was transferred to the learned XIX Addl. C.M.M., Bengaluru. The complainant was examined himself as P.W.1 and got marked the documents Ex.P.1 to P.5. After the closure of the evidence of the complainant, the statement of accused under Section 313 of Cr.P.C., was recorded. The accused has denied the incriminating evidence of the complainant. The accused has not adduced any evidence on his behalf. After hearing both the sides, the learned Magistrate has convicted the accused for the offence punishable under Section 138 of the N.I.Act and sentenced to pay a fine of Rs.5,35,000/-, in default, to undergo simple imprisonment for a period of six months and also ordered that, out of the fine amount, a sum of Rs.5,30,000/- shall be paid to the complainant as compensation and the balance of Rs.5,000/- shall be forfeited to the State.
4. Being aggrieved by the orders of the trial court, the appellant has preferred this appeal on the following grounds.
(1) The trial court has passed an erroneous order and hence, the impugned judgment is liable to be set aside and remand the matter to the trial court for fresh disposal, as the trial court has not given sufficient opportunity to the accused to lead his evidence and his counsel was also not prosecuted the case properly before the court and hence, there was a communication gap between them.
Due to the lack of procedure, the accused could not take necessary action in this regard ;
4 Crl.Appeal No.802/2015(2) Admittedly, the complainant had not produced any document to substantiate his case for having paid the alleged huge amount of Rs.4,80,000/- to the accused and the complainant has not produced any document to prove his financial capacity, despite of that, the trial court has come to the wrong conclusion and passed the impugned judgment;
(3) The complainant has deposed before the trial court that he has taken Rs.2,00,000/- from his brother Nagaraj and made the payment of Rs.4,80,000/- to the accused, out of which, Rs.2,80,000/- was retained by the complainant with him, but the complainant has failed to examine the said Nagaraj to prove his case. Hence, the complainant has falsely deposed about the said aspects. Therefore, an opportunity has to be given to the appellant to further cross examine the P.W.1 in this regard;
(4) The legal notice was not duly served on the appellant, as the address one mentioned in the legal notice is disputed by the accused;
(5) The impugned judgment is against to the principles of natural justice and the same is contrary to law and hence, the same is liable to be set aside ;
(6) The impugned judgment passed by the trial court is opposed to law and probabilities.
Hence, the appellant has prayed to allow the appeal by setting aside the impugned judgment passed by the learned XIX Addl. C.M.M., Bengaluru in C.C.No.25428/2012, dated:29.04.2015.
5 Crl.Appeal No.802/20155. The respondent put his appearance through his counsel. The lower court records were secured.
6. Heard the arguments of both the sides.
7. From the above facts, the points that arise for my consideration are as under:
(1) Whether the appellant has made out grounds to interfere with the impugned judgment ?
(2) What Order ?
8. My findings on the above points are as follows.
POINT No.1 - In the Affirmative,
POINT No.2 - As per final order,
for the following :
REASONS
9. POINT No.1 : The learned counsel for the appellant has
vehemently argued that the trial court has not given sufficient opportunity to the appellant to lead his evidence and hence, prayed to remand the matter for fresh disposal. The appellant has also intended to further cross examine the P.W.1 on the ground of financial capacity of the respondent/complainant, as he has deposed before the court that he has taken Rs.2,00,000/- from his brother Nagaraj and paid Rs.4,80,000/- to the accused by adding Rs.2,80,000/- which was retained by the complainant. But, the complainant has not produced any document to show his source of income. The complainant has not complied the 6 Crl.Appeal No.802/2015 provisions of Section 269-SS of I.T.Act. The notice is not duly served on the accused. Hence, prayed to allow the appeal by setting aside the impugned judgment and prayed to acquit the accused for the offence punishable under Section 138 of N.I.Act.
10. Per contra, the learned counsel for the respondent has vehemently argued that the appellant has not lead his defence evidence, still he has falsely made allegation against his counsel that he has not prosecuted the case properly and hence, prayed to remand the matter to the trial court. In fact, the appellant himself has stated before the learned Magistrate that he is not going to adduce his evidence, while recording his statement under Section 313 of Cr.P.C. Hence, the trial court has posted the matter for arguments and when the case was posted for arguments, the appellant has moved an application for recall of P.W.1 in order to further cross examine the P.W.1. Accordingly, the said I.A., came to be allowed and he has further cross examined the P.W.1 and the case was posted for arguments. Therefore, this court cannot accept the contention of the appellant that the trial court has not given sufficient opportunity to the accused to cross examine the P.W.1. Hence, prayer to remand the matter cannot be accepted.
11. The complainant has lent Rs.4,80,000/- to the accused for his financial need and the accused has issued the cheque Ex.P.1 for repayment of the said loan, but the said cheque 7 Crl.Appeal No.802/2015 came to be dishonoured for the reasons "Funds Insufficient"
and the complainant has got issued the legal notice to the accused, which came to be served on the accused and the accused has not either replied to the said notice or paid the cheque amount, still the accused has falsely contended that the notice is not served, which is also a false ground urged by the appellant. The same cannot be accepted. The appellant has interalia contended that the complainant has no source of income and he has no financial capacity to pay Rs.4,80,000/- to the accused, but the complainant has taken Rs.2,00,000/- from his brother Nagaraj and paid Rs.4,80,000/- to the accused by including Rs.2,80,000/-, which was retained by the complainant. The said fact was deposed by the complainant during the course of trial. The accused has not cross examined the P.W.1 in that respect. Now, he cannot seek this court to remand the case for further cross examination of P.W.1 in that aspect. When the accused has taken the false defense that he has borrowed Rs.1,00,000/- from the complainant and issued the Ex.P.1- blank cheque as security for the said loan, but the complainant has mis-used the said cheque. Hence, the accused has admitted the signature on Ex.P.1. There is a presumption under Section 139 of N.I.Act. The accused has not rebutted the said presumption, as he has not at all entered into the witness box. The accused has attended his office, even though he has moved an exemption application before the trial court by alleging false grounds. The complainant has produced the muster roll of the BBMP, 8 Crl.Appeal No.802/2015 wherein the accused was serving to show that he was attended the office on the date when he has moved an exemption application by alleging false grounds. Hence, prayed to allow the said application filed under Section 391 of Cr.P.C., and prayed to dismiss the appeal.
12. The complainant has alleged in the complaint that the accused has approached the complainant and requested for lending a sum of Rs.4,80,000/- as hand loan to meet his financial necessities and agreed to repay it within one month. Therefore, the complainant has lent Rs.4,80,000/- to the accused by way of cash. The complainant has deposed before the court by swearing to an affidavit about the said fact without disclosing the date on which he has lent Rs.4,80,000/- to the accused. The complainant has deposed for the first time before the lower court by improving his version that during the month of March 2012, the accused has approached him and requested for loan. Accordingly, the complainant has lent Rs.4,80,000/- to the accused on 22.03.2012. The said date is not at all finding place in the complaint. Therefore, the complainant's version about the payment of Rs.4,80,000/- to the accused on 22.03.2012 cannot be believable.
13. The complainant's version itself that he has lent Rs.4,80,000/- to the accused by way of cash. But, Their Lordships have pleased to held in AIR 2008 SC 1325 (Krishna Janardhan Bhat .Vs. Dattatraya G. Hegde), as under:
9 Crl.Appeal No.802/2015"as per Section 269-SS of Income Tax Act, any advance taken by way of loan of more than Rs.20,000/- was to be made by way of account payee cheque only"
The dictum laid down by Their Lordships is aptly applicable to the case on hand. Therefore, it creates doubt in the mind of the court about as to whether the complainant has paid Rs.4,80,000/- to the accused.
14. The complainant has further alleged in the complaint that when the complainant demanded the accused for repayment of the amount, the accused has issued the cheque Ex.P.1, dated:11.06.2012. The complainant has not whispered in the complaint as to when he has demanded the accused for repayment of the loan amount. The complainant has sworn to an affidavit and deposed before the court that he has requested the accused during April 2012 for repayment of Rs.4,80,000/-, but the accused has issued the cheque Ex.P.1 on 11.06.2012. Therefore, the said contention of the complainant reveals that the accused might have issued the cheque Ex.P.1 only after April 2012. Their Lordships have pleased to held in (Santhosh Manikrao Gundale .Vs. Rameshwar Vamanrao Tak & another) and also in 2014 AIR SCW 2158 (John K.Abraham .Vs. Simon C. Abraham & another), as under:
"For drawing the presumption under Section 118 r/w. Section 139 of N.I.Act - Complainant not sure as to who wrote the cheque nor aware as to when and 10 Crl.Appeal No.802/2015 where existing transaction took place for which the cheque was issued by the accused. The complainant did not mentioned the date of advance of loan in his complaint and the date of issuance of cheque also not mentioned - Advance of loan as alleged by the complainant not proved".
The said dictum is aptly applicable to the facts on hand.
15. P.W.1 has deposed before the court and stated during the course of cross examination that he is doing Real Estate Business. The accused became the friend of the complainant through one Muniraj about ten years back. The accused has requested for hand loan of Rs.4,80,000/- on 11.06.2012 and on that day, he has lent Rs.4,80,000/- by way of cash and the accused has issued the cheque Ex.P.1 on the date on which he has lent the amount and the accused has assured to repay the amount within 2-3 days. Therefore, it creates doubt in the mind of the court about the version of the complaint about when he has lent the amount to the accused and when the accused has issued the cheque. The complainant's version is oscillating like pendulum in the wall clock. At one breath, the complainant has stated that he has lent Rs.4,80,000/- to the accused on 22.03.2012 and in another breath, he has stated that he has lent Rs.4,80,000/- to the accused on 11.06.2012. Similarly, the complainant has stated at one stretch that he has demanded the accused for repayment of the loan during April 2012 and the accused has issued the cheque Ex.P.1. But, the complainant has 11 Crl.Appeal No.802/2015 stated at another stretch that the accused has issued the cheque on 11.06.2012 itself, the date on which he has lent Rs.4,80,000/- to the accused. Therefore, it creates doubt about the genuinity of the transaction alleged to have taken place between the accused and the complainant.
16. The complainant P.W.1 has further stated during the course of cross examination that he has lent the loan to the accused at one instalment, at that time, Muniraj and his brother were present. He further stated that he has taken Rs.2,00,000/- from his brother Nagaraj and given Rs.4,80,000/- to the accused by adding Rs.2,80,000/-, which was retained by the complainant. But, the said fact is not alleged in the complaint. The complainant has revealed the said fact for the first time before the court. The complainant has not chosen either to examine the said Muniraj or his brother Nagaraj to establish the said transaction.
17. The complainant has stated that he has studied up to SSLC and doing real estate business and earning Rs.15,000/- to Rs.20,000/- per month and he is an Income Tax Assessee, but he has not produced any documents i.e., I.T.Returns before the court. If at all, the complainant has made money transaction with the accused, the complainant should have mentioned the said transactions in the I.T.Returns. Therefore, non-production of I.T.Returns by the complainant creates doubt about the said money transaction with the accused. Their Lordships have pleased 12 Crl.Appeal No.802/2015 to held in AIR 2009 (NOC) 2327 (Sanjay Mishra .Vs. Ms.Kanishka Kapoor @ Nikki and another) as under:
"The failure to disclose the amount in income tax return or books of account of the complainant may be sufficient to rebut the presumption under Sec.139 of N.I.Act. The amount advanced by the complainant to the accused was unaccounted cash amount, it was not disclosed in Income Tax Returns, hence, the liability to repay unaccounted cash amount cannot be said to be legally enforceable liability within the meaning of explanation to Sec.138 of N.I.Act".
The dictum laid down by Their Lordships is aptly applicable to the facts on hand.
18. The complainant has not produced any scrap of paper before the court to establish the fact that he is financially sound to pay Rs.4,80,000/- to the accused. As I have already held that the complainant has not proved the lending of Rs.4,80,000/- to the accused by taking Rs.2,00,000/- from his brother Nagaraj itself creates doubt about the financial capacity of the complainant to pay Rs.4,80,000/- to the accused. Their Lordships have pleased to held in 2015 AIR SCW 64 (K.Subramani .Vs. K.Damodara Naidu) as under:
"Complainant had no source of income to lend sum of Rs.14 lakhs to accused - He failed to prove that there is legally recoverable debt payable to the accused to him - Acquittal of accused was proper".
The dictum laid down by Their Lordships is aptly applicable to the facts on hand.
13 Crl.Appeal No.802/201519. The complainant has alleged in the complaint that the accused has issued the cheque Ex.P.1, dated:11.06.2012, when he has demanded for repayment of the loan. Ex.P.1- cheque is meticulously observed, the accused has written the name of the complainant as "N" alphabet in Ex.P.1 tally with "N", which is finding place in Ex.P.1 pertaining to the name of the complainant namely "Anand B.". Therefore, there is weight in the contention of the accused that he has given the signed blank cheque to the complainant when he has availed the loan of Rs.1,00,000/- from the complainant in three instalments. This court is empowered to compare the contents of Ex.P.1 cheque under Section 73 of the Indian Evidence Act. The alphabet "S" one finding place in the signature of the accused in Ex.P.1 is not tallying with the alphabet "S" one finding place in the amount in words i.e., thousand i.e., the alphabet 'S' is not tallying with each other. Therefore, I am of the considered view that it creates doubt as to whether the complainant has not approached the court with clean hands, as he has got filled the contents of the cheque Ex.P.1. The complainant P.W.1 has categorically stated that the accused has given the cheque by filling the contents in his presence. If at all, the accused has filled the contents of Ex.P.1, the alphabet 'S' one finding place in the signature and the amount in words should have been tallied with each other. No doubt, according to Section 20 of N.I.Act, the holder of the cheque i.e., the complainant is empowered to fill the contents, but not exceeding the amount of the stamp. The complainant has to fill the contents with the 14 Crl.Appeal No.802/2015 consent of the accused as held by Their Lordships in catena of decisions. Therefore, I am of the considered view that the complainant has miserably failed to prove the guilt against the accused beyond all reasonable doubt, though there is presumption under Section 139 of N.I.Act that the cheque Ex.P.1 is issued for discharge of legally enforceable debt, but the complainant has not established with cogent evidence that there exists legally enforceable debt i.e., payable by the accused to the complainant.
20. No doubt, the accused has not rebutted the said presumption by entering into the witness box. But, Their Lordships have pleased to held in AIR 2010 SC 1898 (Rangappa .Vs. Mohan) as under:
"If the accused is able to raise probable defense which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defense and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own".
The dictum laid down by Their Lordships is aptly applicable to the facts on hand.
21. The legal notice Ex.P.4, dated:2.07.2012 is duly served on the accused vide the postal acknowledgement Ex.P.5. Therefore, it cannot lie on the mouth of the appellant that the legal notice is not served upon the accused. Hence, the 15 Crl.Appeal No.802/2015 contention of the appellant that the legal notice is not duly served on him cannot be accepted.
22. The accused has elicited in the cross examination of P.W.1 with preponderance of probabilities. Therefore, I am of the considered view that the accused has rebutted the presumption that he has availed the loan of Rs.1,00,000/- from the complainant and issued Ex.P.1 blank signed cheque in favour of the complainant. If at all, the accused intending to deny the version of the complainant, he should have denied in toto that he has not availed any loan from the complainant. The lower court has not appreciated the evidence of P.W.1 and also the materials placed on record in proper perspective and has committed an error in convicting the accused. Hence, the interference of this court is warranted.
23. The learned counsel for the respondent has filed an application under Section 391 of Cr.P.C., and produced the Xerox copies of muster roll and exemption application to show that the accused was attending the office and filed E.P., before the lower court by urging false grounds that the accused has not lead his defense evidence. Now, prayed to remand the case for adducing defense evidence and also for further cross examination of P.W.1 with respect to financial capacity of P.W.1 does not arise, as because this court is not intending to remand the matter. Hence, dismissed the said application. In the result, I answer the Point No.1 in the Affirmative.
16 Crl.Appeal No.802/201524. POINT No.2 : In view of the findings on the Point No.1 as above, my finding on this point is as per following :
ORDER The Crl. Appeal filed by the appellant is allowed. Consequently, the impugned judgment passed by the learned XIX Addl. C.M.M., Bengaluru in C.C.No.25428/2012, dated:29.04.2015 is set aside.
Send back the records to the lower court along with the copy of this judgment.
(Dictated to the Judgment-writer, transcript thereof is corrected then pronounced by me in the open court on this the 20th day of June 2016) (CHANDRASHEKHAR MARGOOR) LXVII Addl.City Civil and Sessions Judge, BENGALURU.