Bangalore District Court
Krishna Kumar S/O Late Honnegowda vs E.Kumaraswamy Naidu on 19 February, 2016
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU
(CCH-61)
Dated this the 19th day of February, 2016
:Present:
Sri B.Jayantha Kumar, B.A.,Law, LL.M.
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl. Appeal. No.1456/2014
Appellant :- Krishna Kumar S/o Late Honnegowda
Aged about 55 years
Proprietor: Sowmya Enterprises
No.863, Yamunanadi Road
Dhobighat
Hanumanthanagar
Bangalore-18
(Rep by Sri Aswathanarayana, Advocate)
Vs
Respondent:- E.Kumaraswamy Naidu
Proprietor of J.M.T.Enterprises
No.21/38, Kaverappa Layout
AGS Layout Main Road
Behind Arehalli
Bangalore.
(Rep by Sri V.Ananda, Advocate)
2 Crl. A. No. 1456/2014
JUDGMENT
This appeal is filed u/sec.374(3) of Cr.P.C. challenging the judgment dated 29.11.2014 passed by the XVI ACMM, Bengaluru in C.C.No.8566/2011 convicting the appellant/ accused for the offence punishable u/s.138 of Negotiable Instruments Act and sentencing him to pay a fine of Rs.75,000/- and in default to undergo simple imprisonment for three months.
2. The appellant is accused and respondent herein is the complainant before the lower court. Hereinafterwards, the parties are referred to as per their ranks assigned to them before the lower court.
3. The brief facts leading to this appeal are as follows:-
The accused approached the complainant in the month of February-2010 and requested to supply cement and as per the request of the accused, the complainant has supplied cement 3 Crl. A. No. 1456/2014 through tax invoices bearing No.667 dt.16.2.2010, 673 dt.
17.2.2010, 681 dt.20.2.2010, 686 dt.23.2.2010 and 689 dt.25.2.2010 totally amounting to Rs.2,11,938.75 and the accused has issued two cheques towards part payment bearing No.478191 dt.1.3.2010 for Rs.45,250/- and another cheque bearing No.478192 dt.1.3.2010 for Rs.21,300/- drawn on Syndicate Bank, Pampamahakavi Road, Chamarajpet, Bangalore drawn in favour of complainant. Complainant presented the two cheques through his banker Syndicate Bank, Chamarajapet, Bangalore and said cheques returned unpaid with endorsement 'exceeds arrangements'. Thereafter, the complainant informed the accused about the said fact both orally as well as written letter dt. 30.4.2010. After receipt of the said letter, the accused had informed the complainant to present the cheques on 14.8.2010. Accordingly, the complainant presented the said cheques through his banker Syndicate Bank, Chamarajapete, Bengaluru and again the said 4 Crl. A. No. 1456/2014 cheques were returned unpaid with endorsement 'exceeds arrangement' on 14.8.2010. Thereafter, the complainant issued legal notice on 30.8.2010 to the accused by RPAD and certificate of posting. The notice sent to the accused through RPAD returned unclaimed and the notice sent under certificate of posting is duly served to the accused. But accused has not paid the amount. Hence, the complainant presented the complaint before Magistrate alleging the offence punishable u/s 138 of Negotiable Instruments Act.
4. After filing of the private complaint, the learned Magistrate took cognizance of the offence and issued summons to the accused, who put in appearance through his counsel and thereafter, the lower court recorded the plea of the accused and the accused pleaded not guilty and claimed to be tried. Hence, the trial was conducted by the lower court. 5 Crl. A. No. 1456/2014
5. In the lower court, the complainant himself examined as P.W.1 and got marked Ex.P1 to 19. After conclusion of trial, statement of accused u/s 313 of Cr.P.C. was recorded. The accused denied all the incriminating circumstances appeared in the prosecution evidence. Accused himself examined as DW1, and got marked one document as Ex.D.1.
6. On hearing the parties, learned Magistrate recorded a finding that the accused has committed an offence punishable u/s 138 of Negotiable Instruments Act and passed the sentence against the accused as aforesaid.
7. Feeling aggrieved by the impugned judgment and sentence passed, the accused preferred this appeal inter-alia contending that the impugned judgment of conviction passed by the lower court is illegal, arbitrary, contrary to the law, procedure and appreciation of evidence on record and natural justice. The lower court has grossly erred in coming to the 6 Crl. A. No. 1456/2014 conclusion that the respondent has discharged burden of proof and the appellant is liable for conviction is not on the material on record. The lower court passed the judgment based on presumptions and assumptions and as such the whole approach of the lower court is perverse and liable to be set aside. The lower court has failed to appreciate the fact that there exist no legally recoverable debt and towards its discharge, the alleged cheques were issued having not been established in the evidence of the complainant. The lower court erred in holding that the respondent clearly established his case. The lower court without applying its mind mechanically passed the impugned judgment, which is unsustainable in law and hence, prayed for setting aside the judgment passed by the lower court.
8. After filing of this appeal, this court issued notice to respondent, who put his appearance through his counsel. Records from lower court are secured.
7 Crl. A. No. 1456/2014
9. Heard the arguments of learned counsels for appellant and respondent.
10. In the light of the contentions taken up in the memorandum of appeal, the points that arise for my determination are as follows;
1) Whether the lower court has committed an error of law and facts in not considering the aspect that there exists no legally recoverable debt?
2) Whether the lower court has committed an error of law in not considering the aspect that the complaint is filed after presentation of cheques and issuance of notice twice?
2) What order?
11. My findings on the above points are as follows:
Point No.1 : In the Negative
Point No.2 : As per final Order
8 Crl. A. No. 1456/2014
REASONS
12. Point No.1: The complainant has alleged that the accused approached the complainant in the month of February- 2010 and requested to supply cement and as per the request of the accused, the complainant has supplied cement through tax invoices bearing No.667 dt.16.2.2010, 673 dt. 17.2.2010, 681 dt.20.2.2010, 686 dt.23.2.2010 and 689 dt.25.2.2010 totally amounting to Rs.2,11,938.75 and the accused has issued two cheques towards part payment bearing No.478191 dt.1.3.2010 for Rs.45,250/- and another cheque bearing No.478192 dt.1.3.2010 for Rs.21,300/- drawn on Syndicate Bank, Pampamahakavi Road, Chamarajpet, Bangalore drawn in favour of complainant. Complainant presented the two cheques through his banker Syndicate Bank, Chamarajapet, Bangalore and said cheques returned unpaid with endorsement 'exceeds arrangements'. Thereafter, the complainant informed the accused about said fact both orally as well as written letter dt. 9 Crl. A. No. 1456/2014 30.4.2010. After receipt of the said letter, the accused had informed the complainant to present the cheques on 14.8.2010. Accordingly, complainant presented the said cheques through his banker Syndicate Bank, Chamarajapete, Bengaluru and again the said cheques were returned unpaid with endorsement 'exceeds arrangement' on 14.8.2010. Thereafter, the complainant issued legal notice on 30.8.2010 to the accused by RPAD and certificate of posting. The notice sent to the accused through RPAD returned unclaimed and the notice sent under certificate of posting is duly served to the accused. But accused has not paid the amount. Hence, complainant presented the complaint before Magistrate alleging the offence punishable u/s 138 of Negotiable Instruments Act.
13. In order to prove the case, complainant examined himself as PW1 and got marked Ex.P.1 to P.19. Ex.P.1 and 2 are the two cheques, Ex.P.3 and P4 are the endorsements issued by the bank, Ex.P.5 is the legal notice issued by the 10 Crl. A. No. 1456/2014 complainant, Ex.P.6 is the certificate of posting and Ex.P.7 is the unserved postal cover, Ex.P.8 is the reply notice issued by the accused, Ex.P.9 is the original complaint, Ex.P.10 to 14 are the copy of invoices, Ex.P.15 is the acknowledgement, Ex.P.16 is Vat receipt, Ex.P.16 is Vat form, Ex.P.17 is slip and Ex.P.18 and 19 are the statements.
14. In order to prove the case of the complainant, complainant himself examined as PW1. In his evidence, he has deposed that the accused purchased cement worth of Rs.2,11,938.75 and towards part payment of the same, accused issued two cheques for Rs.45,250/- and Rs.21,300/- and when the said cheques were presented to the bank, they returned unpaid with endorsements 'exceeds arrangement'. During the course of cross-examination, question was put to PW1 that whether there was any agreement regarding supply of cement. PW1 has stated that there was no agreement. During the course of cross-examination, a suggestion was put 11 Crl. A. No. 1456/2014 to PW1 that the accused gave disputed cheques by writing the amount in the cheque and not by mentioning the name of payee. PW1 has admitted this suggestion. Another suggestion was put to PW1 that the notice was issued as per Ex.D.1 that the accused should pay the cheque amount within seven days otherwise he is going to file cheque bounce case. These two suggestions clearly establish that the accused has not disputed the issuance of two cheques to the complainant by mentioning the amount in the cheques.
15. Now, let me go through the evidence of accused. The accused in his evidence has deposed that he has not purchased any cement from J.M.T. Enterprises as per Ex.P.10 to 14 and he gave Ex.P.1 and Ex.P.2 cheques in the year 2009. He has further deposed that he has paid the amount of the cheques to the complainant. He has further deposed that he had not asked the complainant to present the cheques on 1.3.2010. He has further deposed that he has given cheques by 12 Crl. A. No. 1456/2014 mentioning the amount in Kannada. He has further deposed that he gave cheques as security.
16. In this case, the accused has admitted issuance of two cheques to the complainant. The complainant issued letter to the accused as per Ex.D.1 and the accused issued reply notice as per Ex.P.8. In this reply notice, he has stated that the complainant obtained two cheques for supplying cement, after payment complainant has agreed to return those cheques to the accused. It is further stated that at the time of supplying the cement, obtained the cheques only for security purpose. If really, the accused paid the cheque amount, he could have issued notice for return of cheques or he could have intimated the bank not to honour the cheques as he paid the amount to the complainant. The defence raised by the accused that he gave two cheques in the year 2009 as security purpose cannot be accepted because, the accused has admitted the transaction between him and the complainant. He has specifically stated in 13 Crl. A. No. 1456/2014 the reply notice that the cheques in question was taken by the complainant for supplying the cement. The complainant has produced invoices as per Ex.P.10 to 14 and accused has not disputed these invoices. The accused has not rebutted the presumption available U/s.118 and 139 of Negotiable Instruments Act by producing cogent evidence. Therefore, the accused has issued cheques in question for payment of purchase of cement bags supplied by the complainant to the accused and the said cheques returned unpaid with endorsement 'exceeds arrangement' when presented to the bank. Therefore, the lower court has rightly come to the conclusion that the accused has committed offence punishable U/Sec.138 of Negotiable Instruments Act
17. Learned counsel for appellant/accused has relied upon the decision reported in 1999 Cri.L.J. 2478 in the case of M/s.Abraham Chacko & Co., Madras and another Vs. 14 Crl. A. No. 1456/2014 Kalleppuram Metals, Kochin and another. In this decision, Hon'ble Kerala High Court has held as follows:-
(A) Negotiable Instruments Act - Ss.138(2), 142(c) -
Bouncing of cheque - Cause of action - When arises - Cheque presented second time on request of drawer - Bounced - Second notice sent not received by drawyer - First notice sent only to be considered as notice - Statutory period of 30 days to run from the first notice - Complaint not filed within 30 days of first notice - Complaint not maintainable.
18. Learned counsel for the accused has relied upon the decision reported in AIR 1998 SUPREME COURT 3043 in the matter of Sadanandan Bhadran Vs. Madhavan Sunil Kumar. In this decision, Hon'ble Apex Court has held as follows:-
N.I.Act - Ss.138, 142 - Dishonour of cheque - Complaint - Cause of action - Arises and can arise only once - Payee can present cheque any number of times during the period of its validity - On each presentation 15 Crl. A. No. 1456/2014 and its dishonour a fresh right, and not cause of action, accrues in his favour.
19. Learned counsel for the accused has also relied upon the decision reported in 2004 Cri.L.J. 855 in the case of V.Venkatesa Subbu Vs. M/s.Jaya Bhaskaran and Co. and another , wherein Hon'ble Madras High Court has held as follows:-
Negotiable Instruments Act, S.138 - Dishonour of cheque - complaint - cheque dishonoured when presented earlier - Cause of action has already arisen in respect of first dishonour of cheque and consequent receipt of notice demanding cheque amount - Complaint filed after second dishonour of cheque - Liable to be dismissed as no second cause of action would arise.
20. The lower court has referred to a recent decision of Hon'ble Supreme Court reported in 2013 Crl.L.J. 1112 in the case of Msr Leathers vs S. Palaniappan And Anr. In the 16 Crl. A. No. 1456/2014 said decision, the decision of 'Sadanandan Bhadran Vs. Madhavan Sunil Kumar' was overruled and held as follows:-
"The controversy, in our opinion, can be seen from another angle also. If the decision in Sadanandan Bhadran's case (supra) is correct, there is no option for the holder to defer institution of judicial proceedings even when he may like to do so for so simple and innocuous a reason as to extend certain accommodation to the drawer to arrange the payment of the amount. Apart from the fact that an interpretation which curtails the right of the parties to negotiate a possible settlement without prejudice to the right of holder to institute proceedings within the outer period of limitation stipulated by law should be avoided we see no reason why parties should, by a process of interpretation, be forced to launch complaints where they can or may like to defer such action for good and valid reasons. After all, neither the courts nor the parties stand to gain by institution of proceedings which may become unnecessary if 17 Crl. A. No. 1456/2014 cheque amount is paid by the drawer. The magistracy in this country is over-burdened by an avalanche of cases under Section 138 of Negotiable Instruments Act. If the first default itself must in terms of the decision in Sadanandan Bhadran's case (supra) result in filing of prosecution, avoidable litigation would become an inevitable bane of the legislation that was intended only to bring solemnity to cheques without forcing parties to resort to proceedings in the courts of law. While there is no empirical data to suggest that the problems of overburdened magistracy and judicial system at the district level is entirely because of the compulsions arising out of the decisions in Sadanandan Bhadran's case (supra), it is difficult to say that the law declared in that decision has not added to court congestion.
21. So in view of the recent decision of Hon'ble Supreme Court, I am of the opinion that even though the complainant presented the cheque and issued notice to the accused and again presented the cheque and issued notice to 18 Crl. A. No. 1456/2014 the accused, no way affect the case of the complainant and on this ground, the case of the complainant does not fail. Therefore, the decisions cited by learned counsel for accused/appellant are not applicable to the facts of this case. The lower court after analyzing the facts of the case and after analyzing the law on the point, rightly come to the conclusion that the accused has committed offence punishable u/s. 138 of Negotiable Instruments Act. There are no grounds to set aside the judgment passed by the lower court and accordingly, I answer point No.1 and 2 in the Negative.
22. Point No.3: In view of my findings on point No.1 and 2, I proceed to pass the following:
ORDER The appeal filed u/sec. 374 (3) of Cr.P.C. by the appellant/accused is hereby dismissed.
The judgment passed by the XVI ACMM, Bengaluru in C.C.No.8566/2011 dated 29.11.2014 convicting the accused for 19 Crl. A. No. 1456/2014 the offence punishable U/Sec. 138 of Negotiable Instruments Act, is hereby confirmed.
Send a copy of this judgment to the lower court along with LCR.
(Dictated to the Judgment Writer, transcribed and typed by him, corrected and then pronounced by me in the open court on this the 19th day of February, 2016) (B.Jayantha Kumar) LX Addl.City Civil & Sessions Judge, Bengaluru.
Rrt*