Bangalore District Court
Sri.G.M.Vijay Kumar vs Smt.G.A.Mangala on 23 January, 2020
IN THE COURT OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU
(CCH.20)
:Present:
Sri.D.S.VIJAYA KUMAR, B.Sc., LL.B.,
XXVI Addl. City Civil & Sessions Judge, Bengaluru
Dated this the 23rd day of January, 2020
Crl.Appeal No.25006/2018
Appellant:- Sri.G.M.Vijay Kumar
Aged about 32 years,
S/o G.Mathaiah,
R/a. No.4/15, Shivakaminagar,
P.R.C.Colony, Thanakankulam
Post, Madurai-6, Tamil Nadu.
[By P Assts-Advocate]
Vs.
Respondent:- Smt.G.A.Mangala,
Aged about 33 years,
C/o Subramani,
R/a. No.44, Madhu Reddy
Layout, New City Range,
Kithaganur, K.R.Puram Post,
Bangalore-11.
[By Sri.JMU-Advocate]
2 Crl.A.No.25006/2018
JUDGMENT
The Appellant/Accused has filed this Criminal Appeal under Section-374(2) of the Cr.P.C., questioning the Judgment and Order of Conviction and sentence dtd.03.01.2018 passed in C.C.No.53008/2014 by the LVII Additional Chief Metropolitan Magistrate, Mayo Hall, Bengaluru, wherein the appellant/accused has been convicted for the offence u/s.138 of Negotiable Instruments Act,1881 and sentenced to pay a fine of Rs.5,000/- with default sentence of simple imprisonment of 3 months and ordered payment of compensation of Rs.8,55,000/- to the complainant, with default sentence of simple imprisonment of one year.
2. Brief facts of the Appeal Memo of the Appellant, are as below:-
3 Crl.A.No.25006/2018
The complainant/respondent has filed complaint alleging the offence u/s.138 of Negotiable Instruments Act, that respondent and appellant were friends for five years and Accused's father G.Mathaiah was also known to complainant through accused. In the month of May 2011, Accused and his father requested the complainant to advance a sum of Rs.10.00 laks stating that they are starting a Software company in the name and style 'L.M.Infotec Solutions', at Ii Stage, Indiranagar, Bangalore and assured to repay the amount within 2-3 months. Believing same, complainant/respondent advanced a sum of Rs.10.00 lakhs to Accused and his father in the first week of June 2011 by pooling all her savings and borrowings. After three months she demanded repayment of amount, but Accused and his father postponed 4 Crl.A.No.25006/2018 repayment of one pretext or other. After complainant made repeated requests, finally, Accused and his father G.Mathaiah in the last week of December 2013 issued tow individual post dated cheques for Rs.5.00 lakhs each in the name of complainant one cheque belonged to Accused and another to his father and they assured that cheques would be honoured. Complainant presented cheque bearing No.857024 dtd. 27.01.2014 for Rs.5.00 lakhs issued by Accused for encashment , but to her utter surprise said cheque was returned dishonour with endorsement 'drawer signature differs'. Drawer bank had returned the cheque with endowment dtd. 30.1.2014 and complainant bank returned cheque to complainant with an endorsement on 1.2.2014. Thereafter, complainant sent legal notice dt. 25.02.2014 to 5 Crl.A.No.25006/2018 Accused by RPAD intimating the fact of dishonour of cheque and demanded payment of cheque amount together with interest. But, Accused failed to pay the cheque amount though he received notice on 28.02.2014 as per postal acknowledgement which was returned to complainant. Since accused failed to comply with notice he thereby committed the offence u/s.138 of N.I.Act the Respondent has filed complaint. The Trial court after completion of the evidence and arguments convicted the Accused/Appellant for the offence u/s.138 of Negotiable Instruments Act, 1881. Hence, the Accused/ Appellant has preferred this appeal on the grounds that the impugned the judgment and order of conviction and sentence is very much capricious, arbitrary and opposed to law; that complainant had no financial capacity to advance 6 Crl.A.No.25006/2018 Rs.10.00 lakhs; and as per her evidence in the cross examination her husband would get salary of Rs.35,000/- per month, but is not depending on her husband's income and she is depending on the income of her father, her father works in some private company and owns land; he grows grape and other crops in the land; that her father does not possess any land she has failed to produce any document before the court to show that her father is possessing land; as per the endorsement issued by the drawee Bank cheque has been returned for the reason 'drawee signature differs'; in that situation burden was on the complainant to get the signature verified with the admitted signature. But complainant has not done the same. In the reply notice sent by accused he has clearly contended that he was looking forward to raise loan from some private 7 Crl.A.No.25006/2018 financiers and in that connection, he had kept his father's two signed blank cheques and other documents and he had also kept his own cheque. Complainant who admitted that she is a friend of Accused sister was visiting the house of accused sister where the above documents had been kept. Complainant has stolen said cheque and also cheque of his father and filed a false complaint. Trial court has not appreciated the above said facts and evidence related to the same in right perspective and therefore, impugned judgment is not sustainable and sought for allowing the appeal and setting aside the judgment and order of conviction and sentence.
3. L.C.R. has been secured.
4. Heard arguments and also perused the records.
8 Crl.A.No.25006/2018
5. Now the points that arise for my consideration are:-
1. Whether the respondent/ complainant has proved that Appellant/Accused had issued Ex.P.1 Cheque for legally enforceable debt?
2. Whether the respondent/ complainant has proved that the appellant/Accused has committed the offence under Sec.138 of Negotiable Instruments Act beyond reasonable doubt?
3. Whether the impugned judgment and sentence is illegal and calls for interference?
4. What order?
6. My answer to the above points are as follows:-
9 Crl.A.No.25006/2018
POINT No.1 :- In the negative
POINT No.2 :- In the negative
POINT No.3 :- As per final order
POINT No.4 :- As per final order
for the following
REASONS
7. Point Nos.1 to 4:-Appellant/Accused has been prosecuted for the offence u/s.138 of Negotiable Instruments Act, on the allegations that respondent and appellant were friends for five years and Accused's father G.Mathaiah was also known to complainant through accused. In the month of May 2011, Accused and his father requested the complainant to advance a sum of Rs.10.00 laks stating that they are starting a Software company in the name and style 'L.M.Infotec Solutions', at Ii Stage, Indiranagar, Bangalore and assured to repay the amount 10 Crl.A.No.25006/2018 within 2-3 months. Believing same, complainant/respondent advanced a sum of Rs.10.00 lakhs to Accused and his father in the first week of June 2011 by pooling all her savings and borrowings. After three months she demanded repayment of amount, but Accused and his father postponed repayment on one pretext or other. After complainant made repeated requests, finally, Accused and his father G.Mathaiah in the last week of December 2013 issued two individual post dated cheques for Rs.5.00 lakhs each in the name of complainant one cheque belonged to Accused and another to his father and they assured that cheques would be honoured. Complainant presented cheque bearing No.857024 dtd. 27.01.2014 for Rs.5.00 lakhs issued by Accused for encashment , but to her utter surprise said cheque was returned 11 Crl.A.No.25006/2018 dishonoured with endorsement 'drawer signature differs'. Drawee bank had returned the cheque with endorsement dtd. 30.1.2014 and complainant bank returned cheque to complainant with an endorsement on 1.2.2014. Thereafter, complainant sent legal notice dt. 25.02.2014 to Accused by RPAD intimating the fact of dishonour of cheque and demanded payment of cheque amount together with interest. But, Accused failed to pay the cheque amount, though he received notice on 28.02.2014 as per postal acknowledgement which was returned to complainant. Since accused failed to comply with notice he thereby committed the offence u/s.138 of N.I.Act. On the said grounds, Accused/ appellant having been prosecuted, he has appeared before the Trial court and pleaded not guilty and thereafter 12 Crl.A.No.25006/2018 complainant has testified as PW.1 and produced cheque said to have been issued by Accused for Rs.5.00 lakhs as per Ex.p.1, return memo issued by Bank as per Ex.p.2, copy of legal notice dtd. 25.07.2011 sent to Accused as per Ex.P.3, postal receipt as per Ex.P.4 and postal acknowledgement regarding service of notice on the accused as per Ex.P.5, reply notice sent by Accused as per Ex.P.6, On Demand Promissory Note said to have been executed by Accused as per Ex.P.7 and certain SMS correspondence between Accused and Complainant as per Ex.P.8, C.D pertaining to same and Agreement entered into between complainant and Accused on 25.01.2012 as per Ex.P.9. In the on Demand Promissory Note even LTM is said to have been affixed by Accused in addition to signature. 13 Crl.A.No.25006/2018
8. In the statement recorded u/s.313 of Cr.P.C. Accused has admitted receiving notice by stating that he handed over same to his counsel, but has denied remaining claim of complainant about the transaction and issue of cheque. Accused has not chosen to lead any defence evidence.
9. Upon considering the records, oral and documentary evidence and arguments, Trial court has held Accused guilty of the offence u/s.138 of N.I.Act and imposed fine of Rs.5,000/- with default sentence of three months of simple imprisonment and awarded compensation of Rs.8,50,000/- u/s.357 of Cr.P.C. and directed accused to undergo simple imprisonment for one year in the event of not paid the compensation amount.
14 Crl.A.No.25006/2018
10. Now, being aggrieved by the said Judgment of conviction and sentence, in this appeal accused is laying challenge to the same on the ground that complainant had no financial capacity to advance Rs.10.00 lakhs. According to her evidence in the cross examination her husband would get salary of Rs.35,000/- per month, but she is not depending on her husband's income and she is depending on the income of her father, her father works in some private company and owns land; he grows grape and other crops in the land. But, despite the accused contending that her father does not possess any land she has failed to produce any document before the court to show that her father is possessing land. As per the endorsement issued by the drawee Bank cheque has been returned for the reason 'drawee 15 Crl.A.No.25006/2018 signature differs'. In that situation burden was on the complainant to get the signature verified with the admitted signature. But complainant has not done the same. In the reply notice sent by accused he has clearly contended that he was looking forward to raise loan from some private financiers and in that connection, he had kept his father's two signed blank cheques and other documents and he had also kept his own cheque. Complainant who has admitted that she is a friend of Accused's sister was visiting the house of accused sister where the above documents had been kept. Complainant has stolen said cheque and also cheque of his father and filed a false complaint. Trial court has not appreciated the above said facts and evidence related to the same in right perspective and therefore, impugned judgment is not sustainable. 16 Crl.A.No.25006/2018
11. Accused counsel has placed reliance on the decision of Accused in the case of Basalingappa Vs. Muibasappa, in Crl.A.No.636/2019 DD 09.04.2019 wherein at para-3 it is observed that when accused questioned financial capacity of the complainant if there is no proof of financial capacity, High Court holding that Trial court judgment is perverse is incorrect. Relying on the said judgment, learned counsel for Accused argued that the Accused in this case has clearly denied financial capacity of complainant and complainant has not produced any material before the court to show her financial capacity and hence presumption u/s.139 of N.I.Act is clearly rebutted by the Accused and preponderance of probability which is standard of proof for defence of the accused has been established, but same has not been considered 17 Crl.A.No.25006/2018 by Trial Court. Further, learned counsel placed reliance on the decision of Bombay High Court in the case of Nirmal Nagori Vs. Sagarmal and another, reported in CDJ 2013 Bombay High Court 2018 by drawing attention to the observation in the said decision at paras-11 and 16 and contended that when the cheque is returned with remark 'drawee signature differs' offence u/s.138 of N.I.Act is not attracted.
12. Learned counsel for respondent/counsel submitted arguments and filed written submission justifying the impugned judgment and sentence. Learned counsel argued that initial burden lies on the accused to prove that defence taken by him is probable and also that he had no legally enforceable debt or liability for issuing cheque, but accused has failed to discharge the said initial burden. Evidence on 18 Crl.A.No.25006/2018 record clearly shows that the cheque in question belongs to accused and signature therein is affixed by him. In the cross examination of complainant/PW.1 signature in Ex.P.1 cheque is not seriously challenged, instead suggestion is made that he had kept signed blank cheques at his sister's house and complainant being a friend of his sister was visiting his sister's house and taking advantage of the same, she has stolen cheque and filed a false complaint. Said contention put forth in the cross examination of PW.1 shows that signature in the cheque is actually put by Accused and also there is LTM of Accused in the On Demand Promissory Note and if the accused wanted to challenge the same he was required to have sought for examination on the signature and LTM in the Pronote through expert, which has not been done. On the said 19 Crl.A.No.25006/2018 grounds, learned counsel for respondent has sought for dismissing the appeal by contending that the impugned judgment and conviction is in accordance with law.
13. I have perused records and considered oral and documentary evidence and also arguments of both sides.
14. Firstly, there is no dispute that complainant has complied with sec. 138 (a) to (c) and 142 of N.I.Act in filing the complaint before the Trial Court. I have verified the date of cheque, date of return memo, legal notice and date of filing of compliant and satisfied that the above provisions are complied with before filing the complaint.
15. In the cross examination of Compliant/ PW.1, it is elicited that Accused father is 20 Crl.A.No.25006/2018 permanent resident of Madurai. His daughter and sister of the accused is residing at UCO Bank Colony, Ramamurthy Nagar, Bangalore. It is the clear case of complainant that Accused and his father were often visiting their sister/daughter's house at Bangalore and complainant has admitted that Accused sister Lakshmi was her friend and through her Accused/Appellant had also become her friend and Accused's father had also become well known to her. Suggestion has been made that accused was not a friend of Lakshmi, but she has denied same by stating that she had become a friend through his sister Lakshmi.
16. As regards financial capacity she has deposed that her husband is drawing Rs.30-35 lakhs per month and denied that his income is not sufficient to take care of her family. She has 21 Crl.A.No.25006/2018 stated that she is not depending on the income of her husband, but she is depending on her father's income who is working in a private company and possessing 15 acres of land in Gujuru, where they are growing grapes, coconut and vegetables. Of-course, she has not produced documents before the court to show that her father is possessing lands.
17. As far as issue of Ex.P.1 Cheque is concerned, Accused/Appellant has not disputed that the said cheque belongs to him, but he has denied his signature in the cheque and also issue of same to the complainant. Therefore, it is necessary to dwell upon whether defence put forth that the signature in Ex.P.1 is not his signature and cheque which had been kept at his sister's house has been stolen by complainant is corroborated by preponderance of probability. 22 Crl.A.No.25006/2018 Accused has received legal notice about dishonour of cheque and sent reply notice as per Ex.P.6 to complainant's counsel. At para-1 pages-1 and 2 of the reply notice, accused has put forth following defence:-
"1....... Our client had started the software company in the name and style ' LM Infotec Solutions" at Indiranagar, Bangalore and when he wanted to expand his business he approached some private financiers for loan. The private financieries to advance the loan amount have demanded to furnish few documents like cheques of our client, stamp paper, On demand, our client's father's cheque and some original papers of the property standing in the name of our client or in the name of his father. Our client had obtained two blank signed cheques bearing 791675 and 791676 drawn on State Bank of India, Siruthozail Kapalpur, D-36 Sidco Industrial Estate Kappallur, Madurai, Tamilnadu from his father along with original Sale Deed of the property situated at Thirali village, Madurai, Tamilnadu to 23 Crl.A.No.25006/2018 furnish the same to the financiers at the time of availing loan. Further, our client had kept few cheques bearing Nos.389371, 389372, 389379, 389380 drawn on IDBI Bank, Indiranagar Branch, Bangalore of LM Infotech solutions account, E-stamp paper, On demand Pronote and two cheques bearing No.857024 and another cheque number which is not in the knowledge of our client has approached the private financiers to advance loan by keeping all the documents, but the private financiers refused to advance the loan as the property offered as security is situated in Tamil Nadu State. It is further brought to our notice as our client did not get loans from private financiers, our client closed down the company and kept all the documents mentioned above in his sister's house. Your client being the friend of our client's sister used to visit our client's sister house and used to spend most of the time in our client's sister house".
As per the above defence taken in the reply notice, he started business of software company in the name and style 'LM Infotech Solutions". He 24 Crl.A.No.25006/2018 needed finance for expansion of business and he had approached private financers and they had asked for cheques of accused, stamp paper, On Demand Promissory Note and also his father's document about property. Therefore, Accused has obtained two blank signed cheques of his father along with original sale deed of the property and with the same, he had kept his own cheques including Ex.P.1 at his sister's house in Bangalore. Since loan transaction with private financiers had not materialized he had left above said documents at his sister's house itself and complainant being friend of his sister was frequenting his sister's house. Thus, he has taken defence that complainant by misusing the opportunity has stolen Ex.P.1 cheque and presented same for encashment. In the reply notice he has also stated that complainant has 25 Crl.A.No.25006/2018 forged his signature in the cheque and presented same for encashment. On one hand he has stated that he had kept his father's signed blank cheques and on the other hand, he has contended that complainant has forged his signature in his cheque marked at Ex.P.1. It implies that accused is contending that among the cheques kept at his sisters house his father's cheques were signed cheques, but his cheques were blank and unsigned. Whereas, during cross examination of compainant/PW.1 on 28.10.2017 it is put forth that in the reply notice he has contended that complainant has taken blank signed stamp paper and blank signed cheques and property documents relating to accused father's property at Tamil Nadu.Of-course, PW.1 has denied said suggestion. Accused suggestion implies that she has stolen same. Relevant 26 Crl.A.No.25006/2018 suggestion made in the cross examination of PW.1 is as below:-
"It is true that in the reply notice it has been stated that I have taken blank signed cheques and property documents relating to the property at Tamil Nadu; the witness volunteers that she has not taken any blank signed stamp paper or blank signed documents claimed in the reply notice".
In the reply notice actually in the beginning accused has not taken any contention that he had kept his cheques without affixing signature, but only in the last para of the reply notice he has warned the complainant that she has forged signature in the cheque and he reserves liberty to take action against her. At para-1 of his reply notice he has stated that he had kept his father's cheques and also his cheques, but he has not mentioned whether he had affixed his signature 27 Crl.A.No.25006/2018 or not. In the light of the same, above said suggestion in the cross examination needs to be taken note off. At page-9 of the cross examination, further suggestion has been made that complainant had taken blank stamp paper, property documents, blank signed cheques from Accused. Said suggestion is at para-9 of her cross examination, which is as below:-
"It is false to suggest that I have taken the blank stamp paper, property documents and blank signed cheque from the accused. It is false to suggest that I have misused the Agreement Ex.P.9".
18. It is true that actually suggestion made in criminal case during cross examination of prosecution witnesses are not given as much weight to base the finding of guilt solely on the same. But, herein importantly, in the cross 28 Crl.A.No.25006/2018 examination of PW.1 there is no clear denial of Ex.P.1(a) signature attributed to him in Ex.P.1 cheque, which admittedly belongs to him. It amounts to non controverting complainant's evidence that Accused issued said cheque presumably by affixing signature to complainant. So, above suggestion when considered from the above angle which in turn would clearly establish that signature in the cheque actually belongs to him. Bank Endorsement that 'drawee signature differs' is not conclusive and court need not go by the said endorsement alone when evidence on record shows the fact to be otherwise. Apart from the same, signature in Ex.P.6 attributed to the accused indeed compares with his admitted signature in plea, vakalathnama and statement u/s.313 of Cr.P.C., barring natural minor variations. Ex.P.9 is the Mutual Agreement 29 Crl.A.No.25006/2018 entered into between complainant and accused and accused has not denied his signature in the said Agreement. In the cross examination of PW.1 with reference to Ex.P.9 it is merely contended that complainant had taken blank stamp paper, property documents and blank signed cheques from him and she has misused same by concocting blank paper into agreement as per Ex.P.9. It is to be noted that his original contention is that the cheques and documents which he had kept at his sisters house have been stolen by complainant by taking advantage of the fact that she was visiting accused's sister's house who was her friend. But, while making above suggestion, above said defence has been given go - bye, by putting forth suggestion that she had taken said document from the Accused. 30 Crl.A.No.25006/2018
19. From overall facts and circumstances, I am of opinion that complainant has proved beyond reasonable doubt that Accused has issued Ex.P.1 cheque and signature therein is that of the accused. In view of complainant establishing same, natural corollary is that Sec.138 of N.I. Act visits the case on hand which means that a legal presumption will have to be raised that the said cheque at Ex.P1 has been issued by Accused for discharge of Legally enforceable debt or liability. Ex.P.7 On Demand Promissory Note and Consideration Receipt is also bearing his signature and LTM and as I have already held Accused has not taken any pain to get LTM or signature compared through Expert. I am of opinion that it was for the accused to have got same examined through expert if he were to really dispute same. Same having not been done 31 Crl.A.No.25006/2018 Ex.P.7 further shows that accused had borrowed Rs.5.00 laks under on Demand Promissory Note and Consideration Receipt. Of-course, case of complainant is that Accused and his father had together borrowed Rs.10.00 lakhs. Whereas x.P.7 Pronote and Ex.P.9 Agreement corroborates complainant's case that she had actually advanced Rs.10.00 lakhs to accused and his father and accused has executed on Demand Promissory Note for Rs.5.00 lakhs. In these circumstances, I am of opinion that contention of Accused/Appellant that complainant did not have financial capacity to advance loan amount cannot be accepted. Therefore, I am of the view that evidence on record clearly establishes the offence u/s.138 of NI.Act beyond reasonable doubt.
32 Crl.A.No.25006/2018
20. Learned Trial Judge has imposed compensation of Rs.8,55,000/- as against the cheque amount of Rs.5.00 lakhs. Admittedly accused was looking forward for finance to expand his software business and hence loan is availed for business purpose. Cheque is of the year 2014 and impugned judgment is dtd. 3.1.2018. Considering the time gap and that accused had taken loan for commercial purpose, I am of opinion that compensation awarded by the Trial court does not require interference. However, default sentence of one year imposed for non payment of compensation amount seems to be on higher side. I am of opinion that same may be reduced to six months. Barring same I find no merits in the appeal.
Consequently, Point Nos.1 & 2 are answered in the affirmative and point No.3 in the negative, 33 Crl.A.No.25006/2018 except regarding modification of default sentence for non payment of compensation amount.
21. Point No.4:- For the foregoing reasons, I proceed to pass the following :-
O R D E R Criminal Appeal filed by the Appellant under Sec.374(2) of the Cr.P.C., is hereby dismissed.
Judgment of conviction & sentence and award of compensation against Appellant dated. 03.01.2018 passed in C.C. No.53008/2014 by the Learned LVII Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru is hereby confirmed, 34 Crl.A.No.25006/2018 by modifying the default sentence of simple imprisonment of one year in respect of default in payment of compensation. It is modified and ordered that Accused in default to pay the compensation as ordered, has to undergo simple imprisonment for six (6) months, instead of one (1) year.
The Bail bonds and surety bonds of the Appellant are discharged.
Retransmit the LCR along with a certified copy of this judgment to the Lower court 35 Crl.A.No.25006/2018 without delay, by not later than 30 days.
--
(Dictated to the Stenographer, transcript thereof, is corrected and then pronounced by me in the open court on this the 23rd day of January, 2020)
--
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil & Sessions Judge Mayo Hall, Bengaluru.