Bangalore District Court
Sri. Shankrappa vs Aged About 66 Years on 6 April, 2022
KABC010042892017
IN THE COURT OF THE LXII ADDL.CITY CIVIL
& SESSIONS JUDGE, BENGALURU
Dated this the 6 th day of April, 202 2
PRESENT
SRI. R. ONKARAPPA, B.Sc, L.L.B.,
LXII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU (CCH-63)
Crl. Appeal No. 221/2017
APPELLANT:/ Sri. Shankrappa
ACCUSED Aged about 66 years
R/at #27, II Main,
Sri. M.V. Layout,
Virupakshapura
Kodigerhalli,
Vidyaranyapura
Bengaluru-97
(By K V Thippeswamy, Advocate)
-Vs-
RESPONDENT :/ M/s Mysore Sales
COMPLAINANT International Ltd.,
Rep by its Authorized signatory
Sri. R.G. Lakshman
(Party in Person)
JUDGMENT
2 Crl.A. 221/2017 The present criminal appeal has preferred by the appellant /accused under Section 374(3) of Cr.P.C against the Judgment dated 16.01.2017 passed by the learned XLII Addl. Chief Metropolitan Magistrate, Bengaluru in C.C.No. 1478/2016, 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. 9,63,000/-. In default to pay fine amount shall undergo simple imprisonment for 10 months. Out of fine amount recovered, a sum of Rs. 9,60,000/- shall be paid to the complainant by way of compensation. Remaining fine amount of Rs. 3,000/- shall be remitted to the State.
2 The factual matrix which leads to this appeal are that, the complainant is a company incorporated under the company's Act 1956 and is registered in accordance with law. The complainant is dealing with the Chit Fund business under the provision of Chit Fund Act. The accused became a chit subscriber of complainant. The accused bid the chit and received the prize amount of Chit No. DL-1/38 and DL-2/34. The accused did not remit the monthly installment and there was due of Rs. 9,15,583/- along with interest and other charges. On repeated requests from the complainant for repayment of amount, accused had issued the cheque bearing No. 805371 dated 27.07.2015 for an amount of Rs. 9,15,583/- drawn on SBIT Bank, Sahakarinagar, Bengaluru towards repayment and the complainant presented the said cheque for encashment through his banker i.e., Vijaya Bank, Gandhinagar, 3 Crl.A. 221/2017 Bengaluru. To the shock of the complainant the said cheque was dishonoured for the reason "Funds Insufficient". To that effect the banker issued memo dated 30.07.2015. Thereafter on 20.08.2015 the complainant got issued legal notice to the accused through RPAD. It was served upon the accused. Even after receipt of the notice, the accused not disputed the fact that he had issued the cheque in favour of the complainant for discharge of the legal liability. The accused fails to pay the cheque amount. According to the complainant, the accused has committed an offence punishable under section 138 of N.I. Act. Accordingly the complainant filed the complaint on 01.10.2015.
3 The accused appeared before the trial court and contested the matter. 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 denied the incriminating evidence on examined him under Section 313 of Cr.P.C. To substantiate his defence, the accused confronted the Ex.D1 and Ex.D2 documents. 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 him as aforesaid.
4 Against this judgment the accused has preferred the present appeal on various grounds. They are, grave error in law while taking the cognizance of the offence. Erred in law accepting and acting upon the evidence of PW.1 which is being inadmissible. That the impugned judgment is one sided and not 4 Crl.A. 221/2017 valid in the eye of law. Order of conviction is utterly unsustainable under the law. No sufficient opportunity granted to the appellant/accused to lead defence evidence in his side. That the cheque in question issued for the purpose of the security not for discharge of any debt or liability. No appreciation in the evidence of PW1 though there are several weakness in the evidence of PW1. Impugned judgment is unreasonable and perverse. Though there are more ground which creates suspicious circumstance upon the case of the complainant, the learned Trial Judge failed to appreciated the same and passed impugned judgment. Impugned judgment is too harsh, severe, illegal and incorrect. Hence he prays for set aside the impugned judgment of conviction. To avoid the repetition of the facts, the above all grounds are taken for common discussion.
5 After service of the notice, the respondent appeared before the Court, but no vakalath filed on behalf of the respondent. The Trial Court Records have been secured.
6 Heard arguments on side of the respondent.
Perused the records.
7 The points that arise for my determination are:
1. Whether the complainant established that the disputed cheque has been issued by the accused for repayment of amount?
5 Crl.A. 221/2017
2. Whether the trial court has committed any error in law or in fact in convicting the accused?
8 My findings to the above points are as under:-
POINT No.1 :- In the Affirmative.
POINT No.2 :- In the Negative for
the following:-
REASONS
9 POINT No.1 and 2:- In order to ascertain the
legality on the complaint, I perused the records. That the complainant presented the cheque bearing No. 805371 dated 27.07.2015 as per Ex.P2. He got a memo of endorsement stating "Funds Insufficient" dated 30.07.2015 as per Ex.P3. Demand notice also issued by the complainant against to the accused dated 20.08.2015 as per Ex.P4. Postal receipt as per Ex.P4(a) dated 20.08.2015. Postal acknowledgment dated 21.08.2015 as per Ex.P4(b). Perused the records, the complaint came to be lodged by the complainant before the trial court on 01.10.2015 this much case of the complainant have also not much disputing by the accused.
10 After careful perusal of the records, it obvious that the complainant maintained the complaint before the trial court well in time and instrument i.e., cheque present by the complainant through his banker for encashment, also within 6 Crl.A. 221/2017 time and documents valid in nature. As the trial court keenly appreciated all these facts in accordance with Section 138 of N.I. Act, I am of the opinion that the learned trial Judge adopted a rightful procedure in taking the cognizance against to the accused and there is no infirmity on record to interfere in this aspect.
11 Core substance of the complaint is that, the complainant is a company incorporated under the company's Act 1956 and is registered in accordance with law. The complainant is dealing with the Chit Fund business under the provision of Chit Fund Act. The accused became a chit subscriber of complainant. The accused bid the chit and received the prize amount of Chit No. DL-1/38 and DL-2/34. The accused did not remit the monthly installment and there was due of Rs. 9,15,583/- along with interest and other charges. On repeated requests from the complainant for repayment of amount, accused had issued the cheque bearing No. 805371 dated 27.07.2015 for an amount of Rs. 9,15,583/- drawn on SBIT Bank, Sahakarinagar, Bengaluru towards repayment and the complainant presented the said cheque for encashment through his banker i.e., Vijaya Bank, Gandhinagar, Bengaluru. To the shock of the complainant the said cheque was dishonoured for the reason "Funds Insufficient". To that effect the banker issued memo dated 30.07.2015. Thereafter on 20.08.2015 the complainant got issued legal notice to the accused through RPAD. It was served upon the accused. Even after receipt of the notice, the accused not disputed the fact that 7 Crl.A. 221/2017 he had issued the cheque in favour of the complainant for discharge of the legal liability. The accused fails to pay the cheque amount. According to the complainant, the accused has committed an offence punishable under section 138 of N.I. Act. Accordingly the complainant filed the complaint on 01.10.2015.
12 Further in order to substantiate the case of the complainant, the complainant got marked one chit subscriber personal ledger as per Ex.P5, wherein the same the name of th accused can be found at the coloumn of name of the subscriber. PW1 also got marked one article of association which establish the existence of legal entity of the complainant as per Ex.P7. One chit agreement got marked as per Ex.P9 and Ex.P10. Action proceeding registered as per Ex.P11 and Ex.P12. Minute books as per Ex.P13 and Ex.P14. Notice under section 32 and 33 of Chit Fund Act as per Ex.P15 and Ex.P16. Two postal acknowledgment as per Ex.P15(a) and Ex.P16(a). Chit payment voucher as per Ex.P17 and Ex.P18. When go through the cross examination of PW.1, that the accused have not much disputed in so far that he is the subscriber of the chit at before the complainant. Also not much disputed that he got obtained chit amount after he bid the chit. Further the accused have also not much disputed servicing of legal notice and notice issued under section 32 and 33 of Chit Fund Act. But net case of the accused as per cross examination of PW1 that the accused not liable to pay amount of Rs. 9,15,583/-, but he liable to pay amount of Rs. 7,91,200/-. With this aspect the accused made suggestion to PW1 that the same herein extracted, "the 8 Crl.A. 221/2017 accused liable only to Rs. 7,91,200/-". Further the accused made suggestion to PW1 that, "though the accused liable only amount of Rs. 7,91,200/- the complainant got filled the cheque intentionally to the amount of Rs. 9,15,583/- ". In so far the suggestion of the accused, the complainant voluntarily stated that the accused is liable to a tune of Rs. 9,15,583/- including the interest. PW1 unequivocally admitted the suggestion as per Ex.P15 and Ex.P16 notice that the accused is liable only to a tune of Rs. 7,00,000/- and Rs. 3,75,000/- respectively. But, PW1 further voluntarily stated that Ex.P15 and Ex.P16 notice not pertains to the transaction covered under the Ex.P2 cheque.
13 With this sort of defence, one thing is evidence the accused admitted his liability to a tune of Rs. 7,91,200/-, but the accused denied his liability to a tune of Rs. 9,15,583/-. From this sort of defence the dispute between the complainant and the accused only a tune of Rs. 1,23,800/-. It is pertinent to note here that the accused have not much disputed that he is the chit subscriber at before the complainant and he bid the chit at before the complainant and handover the cheque in question herein for realize the amount. In so far difference amount of Rs. 1,23,800/- the PW1 voluntarily stated that there is an also a liability on the accused to pay the interest upon the principle amount. In so far alleged principle amount is concerned the defence of the accused is very much silent. If the accused once not liable to pay an alleged interest amount certainly he would have more option to raise a probable defence against to the 9 Crl.A. 221/2017 answer, answered by the PW1. Since the defence of the accused very much silent with respect to alleged interest amount and the accused also not disputed that the Ex.P2 cheque belonged to his account and signature available on Ex.P2 belonged to him. As such, Ex.D1 and 2 chit passbook got marked in favour of the accused have not inspire anything of the probable case of the accused. Therefore, that I am of the view that the accused failed to established any probable defence to impeach the case of the complainant. On the contrary the complainant established the case against to the accused by corroborating the oral evidence with documentary evidence.
14 The evidence of the complainant along with documentary evidence clearly and categorically establish all the ingredients of Section 138 of N.I. Act. Moreover, the accused did not denied the issuance of cheque in question in favour of the complainant and the statutory presumption under section 139 N.I. Act remained as un-rebutted. Under this circumstance, the learned trial court drawn the presumption in favour of the complainant u/s 139 of N.I. Act that the accused had issued the cheque in question to the complainant towards discharge of legally enforceable debt or liability.
15 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 10 Crl.A. 221/2017 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. Therefore, presumption raised to the cheque by the trial court cannot be interfered with.
16 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.P2 for a sum of Rs. 9,15,583/- towards discharge of legally enforceable debt and on presentation of the cheque, it was dishonored for the reasons "Funds Insufficient". 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.
17 Even inspite of gone through the records, there is no materials available on records to substantiate the ground which are urged 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 evidence on record, it is of my opinion that appellant failed to establish any illegality or 11 Crl.A. 221/2017 error or infirmity in the judgment and sentence passed by the Learned Trial Court as such, I hold that the trial court has not committed any error in convicting the accused. Accordingly, the Appeal has to be rejected. Thus, I answer point No.1 in the Affirmative and point No.2 in the Negative and proceed to pass the following:
ORDER The Criminal Appeal filed under Section 374(3) of Cr.P.C. is hereby dismissed.
Judgment and sentence dated 16.01.2017 passed by the learned XLII ACMM, Bengaluru in CC No. 1478/2016 is hereby confirmed.
Send the copy of the
Judgment along with the records to
the Trial court.
(Dictated to the Stenographer directly computer, typed by her and then corrected and pronounced by me in the open court on this the 6 th day of April, 2022).
sd/-
(R. ONKARAPPA) LXII Addl. C.C. & Sessions Judge, BANGALORE CITY.