Bangalore District Court
Sri.Vinayaka Keshava Bhandari vs S/O Keshava Bhandari on 27 February, 2023
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Crl.A.No. 25184/2020
KABC0A0036632020
IN THE COURT OF THE 74th ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU
(CCH-75)
Dated: This the 27th day of February -2023
PRESENT:
SRI. MOHAMMED MUJEER ULLA C.G. B.A. LL.B.,
74th Addl. City Civil and Sessions Judge, Bengaluru
CRL.APPEAL. NO.25184/2020
APPELLANT/ Sri.Vinayaka Keshava Bhandari,
ACCUSED S/o Keshava Bhandari,
Aged about 44 years,
GPA Keshavarama Bhandari,
R/at No.21 B Main road,
2nd Cross,Nagarabhavi,
Bengaluru - 560072.
Party In Person
.. Vs ..
RESPONDENTS/ 1 Smt.Megha M.Borkar
COMPLAINANTS: W/o Sri. Milind Borkar,
Aged about 51years
R/at No. 614/58/1, Kuvempu Road,
Udayanagar, Bengaluru-560 016
Bengaluru - 560016.
2 Sri.H. Kumaraswami
(Sri. SGR & C. Dasappa, Advocates)
No.304,LAW Next Associates
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Crl.A.No. 25184/2020
No.8, Prabhath Complex, K.G.Road,
Bengaluru-9.
R1 Rep By Sri. H.K., Advocate
R2: Absent
JUDGMENT
Appellant, the accused in C.C.No.58290/2018, being aggrieved by the judgment of conviction and sentence dated:18.05.2020 passed by the learned XXXIII Addl. Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru convicting him for the offence punishable U/Sec.138 of Negotiable Instruments Act (N.I Act), imposing fine of Rs.5,000/-, in default of payment of fine, directing him to undergo simple imprisonment for a period of 3 months, awarding compensation of Rs.6,81,000/- to the complainant and in default of payment of compensation directing him to undergo simple imprisonment for 1 year, has filed the instant appeal U/Sec.374 of Cr.P.C.
2. For convenience the parties are referred to as per their ranking in the trial court.
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Crl.A.No. 25184/2020 FACTS OF THE CASE:-
3. Appellant/Accused availed hand loan of Rs.5,00,000/- from the complainant. Towards the repayment of the said amount, he issued Ex.P.1 cheque dated:08.03.2018 drawn on Corporation Bank,NlSIU Branch, Bengaluru. On presentation of the said cheque for encashment, the bank returned the Cheque along with Ex.P.2 Memo dated: 12.03.2018 stating the reason for dishonoring of Ex.P 1 cheque as "FUNDS INSUFFICIENT". After receipt of Ex.P.2 memo, complainant caused Ex.P.3 Legal notice dated:11.04.2018 through registered post and called upon the accused to make the payment of dishonored cheque within 15 days from the date of receipt of demand notice. After receipt of notice accused did not make the payment of dishonored cheque but, issued Ex.P 6 reply raising false contentions. Therefore he committed offence punishable U/Sec.138 of N.I. Act. On these and other grounds stated in the complaint, the complainant prayed to convict the accused for the offence punishable U/Sec.138 of N.I.Act.
4. A perusal of record would show that, the complainant presented the complaint on 23/05/2018. The Learned Addl.Chief 4 Crl.A.No. 25184/2020 Metropolitan Magistrate, Mayo Hall Unit, Bengaluru by perusing the complaint and the documents produced along with it, took cognizance of the offence punishable U/Sec.138 of N.I Act, recorded the Sworn statement of the complainant and issued summons to the accused. After appearance, the accused pleaded not guilty and submitted that, he is having defence to make.
5. Complainant examined herself as PW1 and produced documents marked at Ex.P.1 to Ex.P.6. The statement of accused U/Sec.313 of Cr.P.C was recorded. Accused denied all the incriminating evidence found against him in the evidence of PW1. He not lead evidence.
6. After hearing the arguments on both side, under the impugned judgment, the Learned XXXIV Addl. Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru has held accused guilty of the offence punishable U/Sec.138 of N.I Act, imposed fine of Rs. 5,000/-, in default of payment of fine, he was ordered to undergo simple imprisonment for 3 months, compensation of Rs.6,81,000/- was awarded to the complainant, in default of payment, the accused was directed to undergo simple imprisonment for a period 5 Crl.A.No. 25184/2020 of 1 year. Being aggrieved by the impugned judgment, the accused has filed the instant appeal.
7. In the instant appeal, inter-alia the accused has raised the following grounds:
1. The judgment of the Trial Court is illegal, perverse, improper and contrary to the well established provisions of Law.
2. The trial court passed the impugned judgment without giving sufficient opportunity to accused to subject PW.1 for cross-examination and to lead defence evidence.
Therefore, the impugned judgment is a one sided and it is liable to be set-
aside.
3. The facts stated by the complainant in the connected case in C.C.No.58289/2018 would show that accused transferred the money to the bank account of complainant on several occasions. It wousld falsify the case of the complainant that he 6 Crl.A.No. 25184/2020 availed loan of Rs. 5,00,000/- from the complainant.
8. After service of notice, 1st respondent appeared through counsel Sri. M.D., 2nd rst remained absent.
9. The appellant in person has filed the instant appeal. He executed power of attorney in faovur of his father Keshava Bhandari to prosecute/ conduct the instant appeal. Th attorney holder of appellant submitted written arguments. Heard the Ld. Counsel for 1st respondent .
10. Having regard to the grounds of appeal and the points urged by the counsel on both side, the following points would arise for consideration:
1. Whether the Trial Court was erred in holding that, the accused committed an offence punishable U/Sec.138 of N.I.Act?
2. Whether the Trial Court was erred in imposing fine of Rs.5,000/-, awarding compensation of Rs. 6,81,000/- to the complainant & default sentence?7
Crl.A.No. 25184/2020
3. What Order?
11. My findings on the above points are as under:
Point No.1: In the Negative Point No.2: Partly in the Affirmative Point No.3: As per the final order for the following:
REASONS
12. POINT NO.1: Complainant to prove her case examined herself as PW1 and produced Ex.P. 1 Cheque dt:
08.03.2018 for sum of Rs.5,00,000/-, Ex.P 2 memo dated:
12.03.2018, Ex.P.3 legal notice dated: 11.04.2018, Ex.P. 4, postal receipt, Ex.P. 5 postal acknowledgment and Ex.P. 6 reply dated: 25.04.2018.
13. A perusal of Ex.P. 2 memo would show that on presentation of Ex.P. 1 cheque for encashment, it was dishonored due to Insufficiency of funds in the bank account of accused. After receipt of Ex.P. 2 bank memo, complainant issued Ex.P.3 Demand Notice dated: 11/04/2018. A perusal of Ex.P. 4 postal receipt and Ex.P 5 postal acknowledgment 8 Crl.A.No. 25184/2020 would show that Ex.P. 3 notice was duly served to the accused on 12.04.2018. The complainant presented the complaint on 23.05.2018. Therefore, the complaint was filed within limitation by fulfilling the requirements of Sec.138 & 142 of N.I Act. When such is the case, as per the judgment of Hon'ble Supreme Court of India in the case of "RANGAPPA V/s. MOHAN reported in AIR 2010 SC 1898", the Trial Court was justified in drawing presumption that, Ex.P.1 Cheque was issued towards the discharge of legally recoverable liability. Therefore the burden is on the accused to rebut the said presumption.
14. A perusal of record would show that, after receipt of Ex.P 3 notice accused issued Ex.P 6 reply dated: 25.04.2018.
In Ex.P 6 reply, the accused has stated that about 4 years ago to the date of issuance of the said reply in his shop complainant advanced loan to one Sudhakar Shetty. After availment of the loan, the said Sudhakar Shetty did not repay either principal or interest. Therefore, the complainant by threatening the accused took a blank signed cheque from him. By misusing the said cheque, complainant filed false case against him. In Ex.P 6 reply accused by admitting that Ex.P 1 cheque belongs to his 9 Crl.A.No. 25184/2020 bank account and the signature therein is his signature has denied that he availed loan of Rs. 5,00,000/- from complainant and towards the repayment of the said amount, he issued Ex.P 1 cheque. Thus, accused by issuing Ex.P 6 reply has putforth a specific defence stating the circumstance under which Ex.P 1 cheque reached the hands of complainant.
15. A perusal of trial court record would show that after service of summons accused appeared before the court on 21.06.2019. On the same day accusation was recorded. He pleaded not guilty. On that day accused filed application u/s 145(2) of Cr.P.C. The said application was allowed and the case was posted to 11.07.2019 for cross-examination. On 11.07.2019, 07.08.2019, 7.09.2019, 7.10.2019 despite the complainant and accused appeared before the court, the accused did not subject PW.1 for cross-examination. Therefore, on 7.10.2019 the cross-examination of PW.1 was taken as nil and the case was posted to 24.10.2019. On that day statement of accused u/s 313 of Cr.P.C was recorded and the case was posted to 19.11.2019 for defence evidence. On 19.11.2019 accused filed application for recalling of PW.1 for cross- 10
Crl.A.No. 25184/2020 examination and the said application was allowed by imposing cost of Rs.2,000/- and the case was posted to 16.12.2019. On 16.12.2019 complainant present, accused absent, E.P filed and the same was allowed and the case was posted to 8.01.2020. On 08.01.2020 and 3.2.020, accused was absent. His father Keshava Bhandari, who is prosecuting the instant appeal as attorney holder of accused appeared before the court and filed application u/s. 317 of Cr.P.C and another application u/s 258 of Cr.P.C. The application filed u/s 258 of Cr.P.C was dismissed on 3.2.2020 and on the same day, defence evidence was taken as nil and the case was posted to 17.02.2020 for argument. On 17.02. 2020 counsel for complainant submitted arguments. On that day accused was absent. His father was present and he filed exemption application and same was allowed and the case was posted to 24.02.2020 for defence arguments. Accused's father who is his attorney holder appeared before the court and filed written arguments.
16. In the written arguments the accused has stated that complainant has availed loan in his name from Punjab National bank by creating charge over his property. The complainant 11 Crl.A.No. 25184/2020 transferred the said loan from Punjab National bank to SBM. On 25.5.2016 accused paid Rs. 12,00,000/- to the complainant by depositing the money to her bank account and on the same day he transferred a sum of Rs. 1,00,000/- to her bank account. On 22.06.2017 complainant by threatening the accused of dire consequences unlawfully took the possession of the his house and also took signatures on documents. Further in the written arguments accused has stated that despite the complainant is not having license to do money lending business, she is illegally carrying on money lending business.
17. The contention taken by the accused in his written arguments and the defence put-forth by him in Ex.P 6 reply are altogether different. A perusal of trial court record would show that despite sufficient opportunity was given, accused neither subjected PW.1 for cross-examination nor lead evidence. Thus, there is no material to rebut the presumption envisaged u/ s 139 of NI Act. Therefore, the trial court was justified in holding the accused guilty of the offence punishable u/s 138 of NI Act.
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Crl.A.No. 25184/2020
18. Accused filed the instant appeal through his attorney holder. In the appeal memo he made his advocate appearing before the trial court as 2nd resplendent and made allegations against him. He referred to about the facts stated by PW.1 in connected case in C.C.No.58289/2018. He also stated about availment of loan in Punjab National Bank and transfer of the said loan to SBM. Further he stated that by creating documents complainant filed false case for unlawful gain. Thus, the grounds raised by accused in the appeal memo are not in consonance with defence putfoth by him in Ex.P 6 reply. Thus from the facts stated by accused in Ex.P 6 reply , written arguments and appeal memo would show that he goes on changing his stand. As contended by accused in Ex.P 6 reply if the complainant by threatening him took blank signed cheque from him in connection with advancement of loan to some third person the accused could have lodge complainant against her in jurisdictional police. In Ex.P 6 notice or in the appeal memo he not stated why he did not give complaint against complainant for collecting blank signed cheque from him despite he is not liable to pay any amount to her. Thus, in the instant case, there 13 Crl.A.No. 25184/2020 is no consistency in the defence. As I have already stated above, despite the trial court has given sufficient opportunity, the accused did not make use the same either to subject PW1 for cross-examination or to lead defence evidence to rebut the resumption envisaged u/s 139 of NI Act. Therefore, there is no justifiable ground to interfere with the impugned judgment. In view of the above, I hold that accused failed to substantiate that the impugned judgment is illegal, perverse , improper and contrary to the well established provisions of law and it is liable to be set-aside. In view of the above, I answer Point No.1 in the Negative.
19. POINT NO.2: The Trial Court after holding the accused guilty for the offence punishable U/Sec.138 of N.I.Act, has imposed fine of Rs.5,000/-, in default of payment of fine, he was directed to undergo simple imprisonment for 3 months. Acting U/Sec.357 of Cr.P.C., the Trial Court has awarded compensation of Rs. 6,81,000/- and in default of payment of compensation, accused was directed to undergo simple imprisonment for 1 year. In para No.15 of the impugned judgment, the Trial Court has referred the judgment of Hon'ble 14 Crl.A.No. 25184/2020 Supreme court of India in the case of "SUGINTHI SURESH KUMAR V/S. JAGADISHAN", wherein it has been held that, to enforce an order of compensation, the Court can impose sentence in default of payment compensation.
20. On going through the operative portion of the impugned judgment would show that, the Trial Court has awarded compensation by exercising powers U/Sec.357 of Cr.P.C. Sec.357 of Cr.P.C. reads thus:
"SECTION 357(1) IN THE CODE OF CRIMINAL PROCEDURE, 1973:
(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied-
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;
(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855 ), entitled to recover damages from the person sentenced for the loss resulting to them from such death;15
Crl.A.No. 25184/2020
(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.
(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal.
(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.
(4) .................
(5) ................."
21. As per Sec.357(1) of Cr.P.C., after convicting accused, if the court imposed a sentence of fine or a sentence of imprisonment and fine, the Court may pass an order to pay the whole or a part of fine amount as compensation for any loss or injury caused to victim by the said offence. In the instant case, the substantive 16 Crl.A.No. 25184/2020 sentence awarded by the Trial Court for the offence punishable U/ Sec.138 of N.I.Act is fine of Rs.5,000/-. As per Sec.138 of N.I.Act in addition to sentence of imprisonment, the Court is having power to impose fine double the cheque amount. Despite such vast power is given U/Sec.138 of N.I.Act, the Trial Court has awarded only fine of Rs.5,000/-. In view of meager amount was imposed as fine having regard to the amount of dishonored cheque, the whole or part of the fine amount cannot be an adequate compensation to the complainant. Therefore acting U/Sec.357(3) of Cr.P.C., the Trial Court has awarded compensation of Rs.6,81,000/- to the complainant.
22. A reading of Sec.357(3) of Cr.P.C., it is clear that, when the substantive sentence does not include fine, then the Court can award compensation U/Sec.357(3) of Cr.P.C. If the substantive sentence is only imprisonment and not fine, then under Sec.357(3) of Cr.P.C., a separate sum can be awarded as compensation. In the instant case, in view of the substantive sentence is a fine, the Court cannot invoke Sec.357(3) of Cr.P.C. to grant compensation to the complainant. Therefore, this court is of the opinion that having regard to the cheque amount, the imposition of fine of Rs.5,000/- and after imposition of fine as substantive sentence 17 Crl.A.No. 25184/2020 invoking section 357(3) of Cr.P.C to award compensation to the complainant is not in accordance with law. Therefore, I set-aside the sentence passed by the trial court.
23. As I have already stated above, as per Sec.138 of N.I.Act, the Court is having power to impose fine double the amount of dishonoured cheque. Ex.P. 1 Cheque dated:.08/03/2018 is for a sum of Rs. 5,00,000/-. The impugned Judgment was pronounced on 18/05/2020 i.e., 2 years 2 months after issuance of cheque. U/Sec.80 of N.I.Act, the Court can grant interest at the rate of 18% per annum. The trial court taken into consideration the period of time consumed for disposal of the case awarded compensation of Rs. 6,81,000/- in addition to imposing fine of Rs. 5,000/-. Therefore having regard to the amount of cheque, the duration of prosecution and other facts and circumstances of the case this court is of the opinion that it would be just and reasonable to impose fine of Rs.6,86,000/- and out of fine amount compensation of Rs. 6,81,000/- to complainant. In view of the above, I answer point No.2 PARTLY IN AFFIRMATIVE.
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24. POINT NO.3: In view of my reasons and findings on Point No.1 & 2, I pass the following:
ORDER Appeal is partly allowed.
The Judgment dated: 18/05/2020 in C.C.No.58290/2018 passed by the Learned XXXIII Addl. Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru, convicting the accused for the offence punishable U/Sec.138 of N.I Act is confirmed.
The order of imposing fine in a sum of Rs. 5,000/- and default sentence of one year for non-payment of compensation is set-aside.
Accused is directed to pay a fine of Rs. 6,86,000/-. In default of payment of fine, he is directed to undergo simple imprisonment for 3 months. In the fine amount, a sum of Rs.6,81,000/- is ordered to be paid as compensation to the complainant.
Send TCR to the Trial Court along with the copy of the judgment.
No order as to costs.
********* (Dictated to the Judgment writer directly on computer, after computerization, corrected and then pronounced by me in the open court on this the 27th day of February 2023 ) Digitally signed by MOHAMMED MOHAMMED MUJEER MUJEER ULLA ULLA C G Date: 2023.02.28 14:56:38 CG +0530 (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75) 19 Crl.A.No. 25184/2020