Bangalore District Court
Sri. R. Ashok Kumar vs Sri. Praveen Kumar Jain on 15 January, 2021
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Crl.A No. 1296/2019
IN THE COURT OF THE LXXV ADDITIONAL CITY CIVIL AND
SESSION JUDGE AT BENGALURU CITY (CCH76)
: Present:
Sri. N. Sunil Kumar Singh, B.com., LL.B.,
LXXV Addl.City Civil & Session Judge,
Bengaluru
Dated on this the 15th day of January 2021
Crl. Appeal No.1296/2019
APPELLANT Sri. R. Ashok Kumar
Aged about 50 years
Landmark, Flat bearing No.TF1,
3rd Floor, Building No.84/85,
2nd Main Road,
Palace Gutahalli,
Bengaluru - 560003.
[By Sri. D.P Advocate]
/V e r s u s/
RESPONDENT Sri. Praveen Kumar Jain
S/o. Sri. Jugraj Vanashaji
Aged about 48 years
No.14/06, Bafna Apartments,
Flat No.202, 2nd Floor,
Jain Temple Road, V.V. Puram,
Bengaluru 560 004.
[By Sri. K.M.P Advocate]
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Crl.A No. 1296/2019
:JUDGMENT:
This is an appeal under Section 374 (3) of Cr.P.C filed by the appellant (accused before trial court) against the Judgment in C.C No. 29708/2017 on the file of XII ACMM, Bengaluru dated:
27.04.2019.
2. The parties shall be addressed as per the rankings given before the trial court for the sake of convenience.
3. The facts in brief of the complainant's case before the trial court is that, complainant's mother was owner of shop premises bearing No.2 situated at 1st Floor in property No.6/1, Purna Sheshachar Road, Santhuspet, Bengaluru53 measuring 220 sq.feet and the complainant's mother has let out the said premises on monthly rent to the accused. Since, accused not paid monthly rent the tenancy was terminated and complainant's mother filed suit in O.S No.8045/2008 against the accused for Ejectment and damages. The said suit was decreed on 30.11.2015 and since, accused not delivered the possession of the said 3 Crl.A No. 1296/2019 property. The complainant's mother filed execution case No.478/2015 against the accused on the file of City Civil Court, Begaluru. In the said execution petition the matter was settled amicably and accused has deviled the possession of suit property on 28.10.2016 and also issued two cheques for Rs.2,00,000/ each in the name of complainant towards damages. Since, the suit property was gifted to the complainant by his mother.
4. After dismissal of execution petition on 28.10.2016 the complainant has presented the cheque No.234428 dated:
29.08.2017 for Rs.2,00,000/ drawn on Union Bank of India B.V.K Iyengar Road Branch, Bengaluru for encashment through his banker Kotak Mahindra Bank. V.V Puram Branch, Bengaluru for encashment. But the said cheque was dis honored due to Account closed by the accused on 04.10.2017.
Thus, the complainant has issued statuary notice to the accused on 01.11.2017 calling upon the accused to pay the cheque amount. The said notice was sent to the accused by RPAD which was duly served. Despite of receipt of said legal notice 4 Crl.A No. 1296/2019 accused not complied to the said notice but sent untenable reply. Hence, without any alternative the complainant had invoked Sec.200 of Cr.P.C and filed complaint against accused on the file of XII ACMM, Bengaluru for the offence punishable under Section 138 of N.I Act.
5. After contesting the matter, the respondent herein who was the complainant before trail court got examined himself as P.W.1 by filing his affidavit evidence and got marked documents at Ex.P.1 to 6. The appellant herein who was the accused before trial court got examined himself as DW.1 and documents Ex.D.1 & 2 are marked. After hearing arguments on both the sides the trial court has passed Judgment on 27.04.2019 convicting the appellant herein and sentence to pay fine of Rs.2,20,000/ in default to under go simple imprisonment for a period of one month. Aggrieved by the said judgment of the trial court the appellant herein has preferred present appeal.
6. In the ground of appeal it is contended by appellant that, the judgment passed by the trial court is arbitrary not 5 Crl.A No. 1296/2019 sustainable and liable to be set aside. The trial court has committed grave error in appreciating the evidence and documents of the both sides in right prospective. The trial court has failed to note that, the complainant was not land lord and post dated cheque issued in favour of the land lord were misused by the complainant. The trial court has failed to consider the admissions made by PW.1 in the crossexamination of defence counsel. Thus, the judgment passed by trial court is perverse, erroneous and arbitrary. The trial court has relied upon the statement of complainant for convicting the appellant, even though there is no such recoverable debt by the complainant. The trial court has failed to note the admissions of complainant with regard to pendency of suit in O.S No.8045/2008 and trial court has not appreciated the evidence available on record and ignored some of the admissions of PW.1 which resulted in mis carriage of justice. The trial court has failed to note that accused has rebutted the presumption available U/S 139 of N.I Act. The trial court has failed to note that the complainant not produced the substantial documents to prove that there was legally 6 Crl.A No. 1296/2019 recoverable debt and finding of trial court is erroneous, perverse and illegal. The complainant not produced relevant documents to prove that the offence U/S 138 of N.I Act will attract against the appellant. Hence, impugned judgment is liable to be set aside and prayed to set aside the impugned judgment of the trial court by allowing the appeal.
7. Heard arguments on both the sides and perused the LCR .
8. The following points arises for my consideration;
1. Whether the trial court has rightly convicted the accused for the offence punishable under Section 138 of N.I Act in C.C.No. 29708/2017 ?
2. Whether the judgment passed by the trial court in C.C No. 29708/2017 is to be interfered by this court?
3. What order?
9. My answer to the above points are as follows:
POINT No.1 : In the Affirmative POINT No.2 : In the Negative 7 Crl.A No. 1296/2019 POINT No.3 : As per final order for the following:
REASONS
10. POINT No.1 AND 2 : Since, these two points are interconnected to each other, they have been taken together for discussion in order to avoid repetition of the facts and findings to be given there under.
11. The case of the complainant before the trial court is that, complainant's mother was owner of shop premises bearing No.2 situated at 1st Floor in property No.6/1, Purna Sheshachar Road, Santhuspet, Bengaluru53 measuring 220 sq.feet and the complainant's mother has let out the said premises on monthly rent to the accused. Since, accused not paid monthly rent the tenancy was terminated and complainant's mother filed suit in O.S No.8045/2008 against the accused for Ejectment and damages. The said suit was decreed on 30.11.2015 and since, accused not delivered the possession of the said property. The complainant's mother filed execution case No.478/2015 against 8 Crl.A No. 1296/2019 the accused on the file of City Civil Court, Begaluru. In the said execution petition the matter was settled amicably and accused has deviled the possession of suit property on 28.10.2016 and also issued two cheques for Rs.2,00,000/ each in the name of complainant towards damages. Since, the suit property was gifted to the complainant by his mother.
12. After dismissal of execution petition on 28.10.2016 the complainant has presented the cheque No.234428 dated:
29.08.2017 for Rs.2,00,000/ drawn on Union Bank of India B.V.K Iyengar Road Branch, Bengaluru for encashment through his banker Kotak Mahindra Bank. V.V Puram Branch, Bengaluru for encashment. But the said cheque was dis honored due to Account closed by the accused on 04.10.2017.
Thus, the complainant has issued statuary notice to the accused on 01.11.2017 calling upon the accused to pay the cheque amount. The said notice was sent to the accused by RPAD which was duly served. Despite of receipt of said legal notice accused not complied to the said notice but sent untenable 9 Crl.A No. 1296/2019 reply. Hence, without any alternative the complainant had invoked Sec.200 of Cr.P.C and filed complaint against accused on the file of XII ACMM, Bengaluru for the offence punishable under Section 138 of N.I Act.
13. After contesting the matter, the respondent herein who was the complainant before trail court got examined himself as P.W.1 by filing his affidavit evidence and got marked documents at Ex.P.1 to 6. The appellant herein who was the accused before trial court got examined himself as DW.1 and documents Ex.D.1 & 2 are marked. After hearing arguments on both the sides the trial court has passed Judgment on 27.04.2019 convicting the appellant herein and sentence to pay fine of Rs.2,20,000/ in default to under go simple imprisonment for a period of one month. Aggrieved by the said judgment of the trial court the appellant herein has preferred present appeal.
14. It is argued by learned counsel for appellant herein that, the trial court not considered the evidence of both the sides 10 Crl.A No. 1296/2019 in the right prospective and convicted the accused which resulted in miscarriage of justice. It is also argued by the learned counsel for appellant that, the question of rebutting presumption under Section 139 of Negotiable Instrument Act, do not arise at all since Ex.P.1 is the cheque which was not issued for discharge of any liability to the complainant. It is contended by the appellant that, Ex.P.1 was issued to the mother of complainant for security purpose which was misused by the complainant herein. But for having misused Ex.P.1 by complainant no legal action has been taken by appellant herein so far. It is also argued by the counsel for appellant that even though he has taken sufficient defence with regard to issuance of Ex.P.1 to the mother of complainant herein which was misused by the complainant. The said defence is not considered by the trial court and appreciated while passing the judgment. It is also argued by the learned counsel for appellant that, the admission of PW.1 in the crossexamination of defence counsel was not at all considered and appreciated by the trial court.
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Crl.A No. 1296/2019
15. On perusal of evidence of respondent herein before trial court and documents produced it is pertinent to note that, PW.1 has deposed that, his mother has leased shop premises to the accused and since, he has not vacated the shop premises. The tenancy was terminated by issuing notice and filed a suit in O.S No.8045/2008 on the file of City Civil Court, Bengaluru which was decreed. The said fact is not in dispute between the parties to the suit. The judgment and decree is marked as Ex.D.1 and Ex.D.2. It is also deposed by PW.1 that since, the accused not vacated the premises, his mother filed execution case No.478/2016 and in the said execution petition compromise petition was filed and accused has delivered the possession of the petitioner schedule property to his mother. In order to substantiate the same even though, the complainant not produced any such documents on his behalf. The accused has produced certified copy of execution petition and order sheet which are marked as Ex.D.3 and Ex.D.4. The reticles of which clearly discloses that, the possession of schedule premises was delivered by accused to the mother of complainant on 28.10.2016. 12
Crl.A No. 1296/2019
16. It is also deposed by PW.1 that, in order to pay the damages as ordered by the court the accused has issued cheque in his favour since, the property was gifted to him by his mother and cheque issued by accused to the complainant is marked as Ex.P.1 and the signature of accused is marked as Ex.P.1(a). On going through reticles of Ex.P.1 it is pertinent to note that, the said cheque was issued by the accused to the complainant on 29.06.2017 after compromise entered between the parties as per Ex.D.4. Even though Ex.P.1 is marked, the accused has not disputed his signature of Ex.P.1(a) nor he has disputed that, he has issued Ex.P.1. But accused claimed that, Ex.P.1 was issued to the mother of complainant towards security while he was tenant under the premises belong to the complainant's mother and it was misused by the complainant. But for having misused the cheque Ex.P.1 by the complainant no legal action action was taken by accused so far. This fact is admitted by the accused in crossexamination of counsel of PW.1. It is pertinent to note that, the accused has contended that the cheque was misused by the complainant. But for having misused the cheque by the 13 Crl.A No. 1296/2019 complainant no notice was issued by the accused nor taken any legal action against him. Immediately after noticing such misuse of Ex.P.1 admittedly accused has not taken any legal action against the complainant. There is no consistency in the defence taken by the appellant herein before the trial court.
17. On perusal of Ex.P.1 it is pertinent to note that, the said cheque was issued by the accused and admittedly Ex.P.1 was presented for encashment by PW.1 through his banker Kotak Mahindra Bank Limited. But the said cheque was dishonored due to "Insufficient funds" in the account of the accused as per Ex.P.2. Later PW.1 has issued statutory notice to the accused as contemplated under law as per Ex.P.3 which was sent to the accused through RPAD as per postal receipt Ex.P.4 and admittedly the said notice was served on the accused as per Ex.P.5. But PW.1 claimed that despite of service of such notice accused not replied nor complied to the said legal notice. But the accused contended that he has replied to the said legal notice of the complainant as per Ex.P.6. But in reply notice Ex.P.6 the 14 Crl.A No. 1296/2019 accused has contended that after settlement between the parties in execution petition and delivery of possession the complainant has approached the accused and demanded for additional deposit of Rs.2,00,000/ for renewal of lease. Thus, the accused has issued cheque Ex.P.1 for Rs.2,00,000/. But instead of renewing the lease the complainant has misused the cheque by dragging on the execution of fresh lease agreement. And accused contended that he has closed the account as per the recites of Ex.D.1 & 2. The said contention of accused is after thought and there is no consistency in the defence taken by the accused before the trial court. If really the cheque Ex.P.1 was misused by the complainant the accused would have taken legal action against the complainant after issuance of Ex.P.6. The other defence taken by the accused is not proved by his evidence and documents produced before the trial court. For misuse of cheque Ex.P.1 by the complainant at the relevant point of time accused not lodged any such complaint before police or taken any legal action. Hence, defence taken by the accused at this belated stage cannot be taken into consideration.
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Crl.A No. 1296/2019
18. In the evidence of PW.1 before the trial court it was deposed that, said cheque Ex.P.1 was presented for encashment which was dishonored due to "insufficient fund" in the account of the appellant herein as per Ex.P.2. PW.1 further deposed that, later as contemplated under law he has issued legal notice to the accused as per Ex.P.3 which was sent by RPAD as per Ex.P.4 and served on the accused as per Ex.P.5. It is claimed by PW.1 that despite of service of such notice it was not replied nor complied by the appellant at the relevant point of time. Admittedly, the said notice Ex.P.3 was replied by the accused as per Ex.P.6. But for having misuse of cheque Ex.P.1 by the complainant no legal action was taken by the accused at the relevant point of time.
19. In order to prove that, there was legally recoverable debt, so as to recover the amount from the appellant herein by respondent as mentioned in Ex.P.1. The respondent not produced any documents on his behalf. But admittedly, as per Ex.D.1 and 2 accused has closed his account after issuance of cheque Ex.P.1 to the complainant. There was eviction proceeding 16 Crl.A No. 1296/2019 pending between the accused and mother of complainant and admittedly, the said property was gifted by mother of complainant. Later complainant has compromised the matter with accused and it was claimed by PW.1 that towards payment of damages the said cheque Ex.P.1 was issued which was later dis honored when presented for encasement. Even though the accused has denied that he has issued Ex.P.1 towards payment of damages and contended that Ex.P.1 was issued to the mother of complainant and also further contended that for renewal of lease deed the said cheque was issued and there is no consistency in the defence taken by the accused before trial court. Further, for having misused cheque Ex.P.1 by the respondent herein the appellant not taken any legal action so far. The said fact is not proved by the evidence and documents of DW.1 before the trial court. On perusal of Ex.P.1 it is pertinent to note that the said cheque issued by the appellant herein to the respondent and signature of appellant is marked as Ex.P.1(a) is not at all disputed. On going through reticles of Ex.P.2 it is pertinent to note that banker has issued endorsement stating that "Funds 17 Crl.A No. 1296/2019 Insufficient" in the account of the accused at the relevant point of time. Since, there is no convincing defence evidence on behalf of the accused. The said contention was after thought and cannot be taken into consideration. The accused has taken two defences before the trial court with regard to issuance of Ex.P.1. Both the defences taken by the accused before the trial court are inconsistant and which are not sustainable. Admittedly, the accused has not taken any legal action against the respondent herein for misuse of cheque Ex.P.1. These inconsistent defences will create doubt about the defence taken by the accused before the trial court.
20. From the evidence of PW.1 before the trial court it is pertinent to note that, Ex.P.1 was issued by the accused and when it was presented for encashment it was dishonored as per Ex.P.2 for "Insufficient Funds " in the account of the accused and despite of issuance of statutory notice as contemplated under law as per the Ex.P.3, and despite of sending to the same to the admitted address of accused as per Ex.P.4 and even though, it 18 Crl.A No. 1296/2019 was served on the accused as per Ex.P.5 it was not complied but replied as per Ex.P.6. But there is no consistency in the defence taken by the accused. On going through the finding of the trial court it is pertinent to note that, the trial court has relied upon evidence of PW.1 and documents Ex.P.1 to 6 and held that, there was legally recoverable debt due to which Ex.P.1 was issued by the accused to the complainant.
21. Thus, by the evidence of PW.1 and documents Ex.P.1 to P.6 the respondent herein substantially proved that, accused was due to pay a sum of Rs.2,00,000/ towards the damages as per decree passed in O.S No.8045/2008 and the accused has issued Ex.P.1 to the complainant and later it was dishonored when presented for encasement as per Ex.P.2. Despite of issuance of legal notice at Ex.P.3 and even though it was communicated to the accused as per Ex.P.4 and P.5, accused has not complied but replied evasively as per Ex.P.6. Under Section 139 of Negotiable Instrument Act the presumption is in favour of holder of cheque and if the drawer of the cheque failed to rebut the evidence of 19 Crl.A No. 1296/2019 holder in due course, it shall be presumed that, the cheque was issued in favour of the holder to discharge the part or whole sum of the liability due by the drawer.
22. The accused not taken sufficient defence to rebut the presumption available U/S 139 of N.I Act. The defence taken by accused that, Ex.P.1 was issued as security and also for renewal of lease to the complainant and it was misused by the complainant is not proved by the evidence of DW.1 and his documents Ex.D.1 & 2. The defence taken by the accused person is inconsistent and cannot be relied upon. Thus, by the evidence of PW.1 and his documents Ex.P.1 to P.6 the respondent herein has proved that, accused has committed offence punishable U/S 138 of N.I Act and all the ingredients of Section 138 of N.I Act have been proved by oral and documentary evidence by respondent herein before the trial court. As such the trial court has rightly convicted the appellant herein U/S 138 of N.I Act, and there are no grounds or compelling reasons to set aside the judgment passed by the trial court. The trial court has 20 Crl.A No. 1296/2019 appreciated the oral and documentary evidence of both the sides in the right prospective. As already discussed above, the respondent herein by his evidence as PW.1 and documents Ex.P.1 to P.6 has rightly established that, Ex.P.1 was issued by the appellant herein to discharge legally recoverable debt payable by the accused to the complainant. Hence, there are no reasonable grounds to interfere in the judgment passed by the trial court. Accordingly, I hold Point No.1 as Affirmative and Point No.2 as Negative.
23. POINT NO. 3: In view of my findings in point No. 1 and 2 above, I proceed to pass the following:
ORDER The appeal preferred by the appellant under Section 374 (3) of Cr.P.C is hereby dismissed.
The judgment and order dated: 27.04.2019 passed by XII ACMM, Bengaluru in CC.No. 29708/2017 is hereby confirmed.21
Crl.A No. 1296/2019 The sentence awarded by the trial court while passing judgment is also confirmed.
Send back the LCR along with copy of this judgment to the trial court fourth with.
[Dictated to the Stenographer, transcript thereof corrected, initialed and then pronounced by me, in the Open Court on this the 15th day of January 2021] [N.Sunil Kumar Singh] LXXV Additional City Civl and Session Judge Bengaluru