Bangalore District Court
Shankar P Revankar vs V.Shankarachari on 21 November, 2015
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY.
(CCH-67)
DATED THIS THE 21st DAY OF November 2015.
PRESENT
SRI.VIJAYAN.A., B.A.(LAW), LL.M.
LXVI Addl.City Civil & Sessions Judge
Crl.A.No.1414/2014
APPELLANT Shankar P Revankar,
S/o Late Sri.Padmanabha,
Aged about 55 years,
R/at Jalavala Karki,
Post: Jalavalli,
Honnavar Taluk,
North Canara District.
(Rept.By Sri.NagendraKumar., Adv.)
VS.
RESPONDENT V.Shankarachari,
S/o Veerabhadrachari,
Aged about 53 years,
Ranganath Nilaya,
No.9/1, 28th Cross,
Kilari Road, Bangalore.
(Rept. By Sri.GPR, Adv.)
2 Crl.A.No.1414/2014
JUDGMENT
Appellant has preferred this appeal under Sec.374 of Cr.P.C. being aggrieved by order of conviction passed in CC.No.20583/2012 dated 4.2.2015 by the learned XIX ACMM, Bengaluru.
2. Brief facts of the appellant's case are that:-
The Appellant stated the case of the respondent/complainant in the trial court is that
appellant being the proprietor of the concern had taken order orally for making and delivery of jewels and articles from the respondent/complainant in the month of July and at that time he had received Rs.3,50,000/- by way of cash to purchase gold and silver for making jewels and articles promising to deliver them within a few days. But even after lapse of many days the appellant failed to deliver the jewels and articles. 3 Crl.A.No.1414/2014 Inspite of request of respondent/complainant appellant failed to return the amount and after lapse of two to three months appellant issued cheque for Rs.3,50,000/- dated: 30.10.2006. But when presented the said cheque returned with an endorsement "insufficient funds". The said fact was informed to appellant/accused inspite of which he failed to make the payment. Hence, complaint.
3. The learned magistrate was pleased to take cognizance and sworn statement of complainant was recorded and issued summons to the accused. Thereafter, the complainant has examined himself as P.W.1 and got marked Ex.P.1 to P.13 and closed his side of evidence. The statement of accused under Sec. 313 of Cr.P.C. was recorded and accused examined himself as DW.1 and got marked documents Ex.D.1 to D.5. The trial court after hearing the arguments on 4 Crl.A.No.1414/2014 both sides passed the impugned judgment dated 14.11.2014 convicting the accused/appellant for the offence punishable under Sec.138 of N.I. Act and sentenced him to pay a fine of Rs.3,60,000/- and in default he shall undergo S.I. for a period of six months.
4. Aggrieved by order dated: 14.11.2014 in CC.No.5790/2007 by XV ACMM, the appellant herein has approached this court for the following among other grounds:-
a) The impugned judgment of conviction and sentence passed by trial court is opposed to all canons of law and such, the order is liable to be reversed and set aside.
b) The Trial court has passed the impugned judgment conviction sentence without appreciating the facts and materials on the record arbitrarily land capriciously.5 Crl.A.No.1414/2014
c) The Trial court has failed to consider the fact that the appellant never issued a cheque in favour of the respondent herein at any point of time towards the discharge of liability, hence, there is no legally enforceable debt and question of discharging the liability does not arise.
d) There are lot of discrepancies in the complaint filed by the complainant and contradictory statements given by the complainant in his evidence and cross examination has not been considered at the time of deciding the case on merits.
f) The trial court fails to note that the case of the complainant is that in his complaint the appellant had taken orders orally for making and delivery of jewels and articles from the complainant in the month of July 2006 and received Rs.3,50,000/- as advance for purchase of gold and silver for making jewels and articles. But in the cross examination of complainant states that he has given order for silver plates and silver mug. The complainant was not totally sure about what order was given to the Appellant either jewels and articles or silver articles.6 Crl.A.No.1414/2014
g) The Trial court fails to consider the fact that in the cross examination of complainant the order for silver ornaments was given and advance was paid in the year 1992 but he was unable to tell the date and month of payment of Rs.3,50,000/-. But in the complaint and affidavit evidence it is stated that payment of Rs.3,50,000/- was paid on July 2006 and if the payment is really made there was no need of telling the different year of payment. Hence, there is no transaction between the complainant and the accused.
h) In the evidence complainant has stated that he has given order for 45 Kg of silver articles but in the cross examination he stated that he has given order to the appellant for 15 kgs.
i) The trial court fails to consider that in the cross examination of the complainant he has categorically stated that the appellant was not in Bangalore in the month of July 2006 and appellant had close down his business and moved to his native place Gerusoppa.
Further in his cross examination stated that he went to Gerusoppa and collected the cheque from the Appellant where he was staying which clearly shows that the 7 Crl.A.No.1414/2014 Appellant was not in Bangalore in the year 2006 and the contention taken in complaint and examination in chief and in legal notice that the payment of Rs.3,50,000/- was paid to the complainant/respondent in the year 2006 are all concocted.
j. The court below has not considered the fact that appellant gave a complaint dated: 5.3.2006 to the Basaveshwara Nagara police station for missing his cheque in question while they are shifting to their native place and said complaint was received by the police station. The appellant has also given a letter dated: 25.5.2006 to Corporation Bank, Kilary road, Bangalore where he is holding the account stating that he has misplaced the cheque in question and requested the Bank to close his account.
k. The trial court fails to consider the fact that the complainant has produced two witnesses to substantiate his case , one witness by name Krishnaraju states that he has given order for making about 30 kg of item metals but in his cross examination he has stated that he has given order for making of 15 kg item metals. Another witness Srinivas Raju states 8 Crl.A.No.1414/2014 that he has given an order for making 15 kgs of metal items but in his cross examination he has given order for making 25 kgs metal items. Hence, there is contradictions in the statements of both the witnesses.
l. The trial court erred in passing the judgment considering the sale deed dated: 13.2.2006 produced by the respondent and confirming the address which is mentioned in the sale deed and hold that the appellant is residing in the address mentioned in the sale deed ignoring the fact that the appellant residing at Honnavar taluk during the year 2006 as admitted by the respondent in his cross examination itself.
Hence, learned advocate for appellant prayed this court to set aside the judgment of conviction and sentence passed in C.C. No.5790/2007 dated 14.11.2014 by the learned XV ACMM, Bengaluru and acquit the appellant in the interest of justice and equity. Along with the appeal, appellant has also filed application U/s.389(1) of Cr.P.C., to stay the judgment dated 14.11.2014 in C.C. No.5790/2007 passed by the 9 Crl.A.No.1414/2014 learned XV ACMM, Bengaluru and to suspend the execution of sentence. This court vide order dt.19.12.2014 stayed the operation of judgment and sentence for a period three months and directed the appellant to deposit 5% of the fine amount before the trial court within 40 days from the date of said order and also directed the appellant to appear before the trial court and to execute personal bond for Rs.1,00,000/- with likesum one surety undertaking to appear before the said court and to suffer sentence in case of his failure in this appeal and issued notice to respondent and call for lower court records. Thereafter advocate for appellant filed Memo of compliance of the order. Learned counsel for respondent present and filed vakalath. In the meanwhile, this court received the lower court record.
10 Crl.A.No.1414/2014
5. Heard. The learned Advocate for the Appellant has relied on following citations:
(1) AIR 2003 S.C.No. 182 (2) AIR 2009 S.C.No. 1518 (3) 2008 AIR SCW 738 and (4) Crl.A.No.2137/2005 dated: 3.2.2012.
6. On the basis of case made out, following points arise for my determination:
1) Whether the impugned order is illegal arbitrary and requires interference by this Court ?
2) What Order?
7. My findings to the above points are:
1) In the Negative
2) As per final Order, for the following:
REASONS
8. POINT No.1: The complainant has filed this case against the accused for the offence punishable 11 Crl.A.No.1414/2014 under Sec.138 of NI Act. In the trial court the learned Trial Judge after taking cognizance of the offence issued summons to accused, accused appeared through his advocate and contested the case. During the course of trial complainant himself examined himself as P.W.1 and got marked documents Ex.P.1 to P.13 and accused got examined himself as DW.1 and got marked documents at Ex.D.1 to D.5. Trial court after appreciating both oral and documentary evidence convicted the accused for the offence punishable under Sec.138 of NI Act and sentenced to pay a fine of Rs.3,60,000/- out of which a sum of Rs.3,55,000/- shall be paid compensation to the complainant, in default to undergo simple imprisonment for period of six months. The remaining amount of Rs.5,000/- shall go to State. Being aggrieved by order of judgment of conviction and sentence the accused preferred this 12 Crl.A.No.1414/2014 appeal for setting aside judgment of conviction and sentence passed by Learned Trial Judge in CC.NO:5790/2007 dated: 14.11.2015. This court being both court of law as well as court of fact in the appeal has inclined to analyse the evidence adduced by both the parties in order to verify Trial Judge has passed order in accordance with law or not.
9. P.W.1 Sri.V.Shankarachari filed affidavit in lieu of examination in chief and he in support of his case he produced and got marked complaint in Ex.P.1 , cheque in Ex.P.2 and identified signature of accused at Ex.P.2(a) and endorsement issued by Bank in Ex.P.3, notice in Ex.P.4 , postal receipt in Ex.P.5 and P.6 , UCP in Ex.P.7, notice in postal cover which is returned unserved in Ex.P.8 to P.10 and envelopes are marked as Ex.P.8(a), P.9(a) and P.10(a). Copy of relevant 13 Crl.A.No.1414/2014 portion in sale deed dated: 13.12.2006 at Ex.P.11 and evidence affidavit at Ex.P.12 and P.13.
10. In his cross examination P.W.1 deposed that he is gold smith by profession , he is having his shop at Kilari road and house at White Field road at Marathahalli. He knows accused for the past 10 to 12 years. He is also doing gold and silver business , in the year 1992 he had given orders to accused to manufacture of silver plate and vessels weighing quarter Kg each 8 to 9 silver vessels by that time the silver had cost of Rs.7500/- to Rs.8000/- per Kg. He had given order for manufacture of silver plates and vessels measuring 15 Kg. for which he had paid Rs.3,50,000/- , he had paid amount to accused in the year 1992. He failed to recount the exact month and date , but not paid amount in the year 2006. But he had issued notice to accused to the Basaveshwaranagar 14 Crl.A.No.1414/2014 address and he do not know whether that notice had been served to accused or not in the month of October 2006 he visited native place of accused at Gerusoppe in North Canara wherein accused issued cheque to him. In the year 1993 accused closed his shop and left Bangalore. Further he denied that though he knew that accused was not residing in Bangalore he had sent notice to wrong address. He did not given anything in writing to accused for manufacturing silver articles , totally he had given orders for manufacturing 45 Kg silver articles and he cannot recount the description of those articles. One Sri.Srinivasaraju examined as P.W.2. he deposed that he knows transaction between complainant and accused. He knows complainant for several years. He was doing business of making jewels in gold and silver metals by procuring orders. He had been placing orders for making items of silver metals 15 Crl.A.No.1414/2014 likewise he had ordred for making 15 Kg items of silver metal in different intervals, in turn complainant had given said orders for the accused in the presence of him. In his cross examination he deposed that he knows complainant when he was working in front of shop of complainant he was doing gold smith work, he is having transaction with the complainant. He had given orders for manufacture of 15 kg of silver articles. Again stated that But he had not given any orders to accused and there is no transaction between himself and accused at any point of time and denied suggestions put by learned counsel for the accused.
11. P.W.3 Sri.Krishnan Raju examined himself as P.W.3. In his examination in chief he deposed that he knows complainant for several years , complainant is doing business of making jewels in gold and silver metal by procuring orders. Likewise he has also 16 Crl.A.No.1414/2014 ordered for making 30 Kg of Items out of silver metal in different intervals , inturn complainant had given said orders to accused in presence of him some times.
12. In his cross examination he deposed that he is gold smith and silver smith, he will get orders from complainant for making gold jewels and he will obtain orders from his customers and get silver ornaments manufacture from others , accordingly, he had given orders to complainant for manufacture of silver articles. Complainant is known to him for the past 25 years. At about 5 to 6 times he had given orders to complainant. But he has not given any orders to accused for manufacture of silver articles. But he had given orders to complainant for manufacture of 25 Kg. worth silver ornaments for which he had given Rs.2,50,000/- to complainant. But he had not given that order in the year 2006. Normally all orders are placed by way of 17 Crl.A.No.1414/2014 writing and he denied several suggestions put by learned counsel for the accused.
13. On the other hand accused himself examined as DW.1. In his examination in chief he contended that he do not know the complainant and this witnesses, he was proprietor of SPR Products firm from the year 1996 to 2000. He started his business from 1996 after obtaining license from competent authority i.e. Director of Industries and Commerce issued certificate on 20.11.1996 after obtaining license he started his Firm at No.3, 18th Mian, Muniya Mestri Galli, Kilari Road, Bangalore City. He entered rent agreement with owner Smt.M.Amuda W/o J.Muniswamy Reddy. He was doing only silver articles not jewels. He has not taken any orders orally for making and delivery of jewels and articles in the month of 2006 from the complainant. He has not taken advance of Rs.3,50,000/- from 18 Crl.A.No.1414/2014 complainant or his witness at any time. Further submitted that he closed his firm and went to his village and he was not in Bangalore in the year 2006, there is no quotation of orders taken form complainant for making articles. Hence, that question does not arise for consideration. He had not started his business in the year 1992 or 1993. But complainant falsely stated that order was given in the year 1992 for making silver articles of about 45 Kgs. By that time silver was sold at Rs.7,000/- to 8,000/- per Kg also not correct. He had not given cheque bearing No.003624 for a sum of Rs.3,50,000/- on 30.10.2006. But his some blank cheque are lost for which he had lodged complaint before Basaveshwaranagar police Bangalore and also request letter given to Branch Manager of Corporation Bank, T.V.Complex, 1st Floor, Kilari Road, Bangalore for closing of account NO:50758 dated: 19 Crl.A.No.1414/2014
25.5.2006 stating that some of his cheques have been lost. He denied the cheque and the signature and request letter sent for the bank through registered post, same was served to the Bank and acknowledgement was also produced.
14. Further submitted that he had not issued cheque to the complainant on 30.10.2006 for sum of Rs.3,50,000/-. He has not received legal notice issued by complainant. He intentionally issued legal notice to wrong address. Complainant never come to his village for taking cheque. He had not given cheque to complainant. Taking advantage of his lost cheque he had written cheque as per his will and wish colluding with witnesses to harass him. In the year 1992-93 nor 2006 there is no firm existing. He has not taken any orders from any person to manufacture 45 Kg silver 20 Crl.A.No.1414/2014 articles and he denied transaction between himself and complainant.
15. Again in the light of directions issued by Hon'ble High Court of Karnataka in Crl.Petition NO.233/2013 evidence of DW.1 recorded afresh. In his cross examination he deposed that in the year 1996 he came to Bangalore prior to that date he was not in Bangalore. Further deposed that he purchased site NO.11 and 12 at Sanjay Palya , Bangalore in the year 1991. At that time he was residing at Honnavara. In that sale deed he has given address of his brother but not address of Honnavara. Further deposed that in Ex.D.4 it was written on 1995 address shown as Basaveshwaranagara. Further deposed that Ex.P.2 belonged to his account and SPR products seal and signature in Ex.P.2 belonged to him and he denied that he had given that cheque on 30.10.2006 to 21 Crl.A.No.1414/2014 complainant and he further deposed that Ex.P.2 had missed when he was shifting his house from Basaveshwaranagara to Honnavara, he shifted his house in the year 2000. When he had shifted his house cheque, astrological document and the signature which is signed on blank paper are missing. He cannot recount when exactly the cheque was lost and he cannot recount when he had lodged complaint before the police. After shifting of his house to Honnavara till lodging of complaint before the bank he did not made any transaction with Bank but he had given an application to bank to close his account through post for which there is no postal receipt and he denied that Ex.D.3 has been concocted and fabricated for the purpose of this case. He did not enquired the bank authorities for loosing of Ex.D.2. He denied that on 25.5.2006 he had transaction with the bank. Further 22 Crl.A.No.1414/2014 deposed that his SPR products was closed in the year 2000 prior to that he was assessee for commercial tax as well as income tax for which he has not produced any documents. He did not inform commercial tax authorities as well as customers office concern for closing of SPR products. He clearly admits that in Ex.P.11 the signature belonged to him. He denied several suggestions put by learned advocate for the complainant.
16. On analyzing the entire case of both complainant as well as accused it is crystal clear that DW.1 in his cross examination clearly admitted that the Ex.P.2 cheque belonged to him and seal and signature also belonged to him but his only defence is that when he was shifting his residence from Basaveshwaranagar to Honnavar he lost cheque , stamp papers, and his astrological documents for which he had lodged 23 Crl.A.No.1414/2014 complaint before the police. He also sent application to concerned bank submitting that he has lodged complaint before the Basaveshwaranagar police station sum of have been misplaced while changing his house from Bangalore to Honnavar, further he was also been shifted to Honnavar hence, this account does not require for him to continue. Wherefore he prayed the Bank authorities to close his account and this letter has been sent from Honnavar to Bangalore as per his evidence. But letter discloses that letter has been typed in Bangalore on 25.5.2006. If complainant would have stolen cheque of accused the accused would have lodged complaint before the police for various offences under the IPC. But why all the way he came from Honnavar or Basaveshwaranagar and contested this case again he is contesting in this Appeal. That creates great suspicion in the case of accused. Further in this 24 Crl.A.No.1414/2014 case he also clearly admitted that he had one concern at Kilari road by name SPR Firm, by that time he was assessee both commercial tax as well as income tax for which he has not produced any documents. Without closing bank account commercial tax account and income tax account and without notice to his regular customers as per his evidence he left the address and settled at Honnavar. All these activities as deposed by accused creates doubt in his case. On the other hand though complainant alleged before this court that he had issued Rs.3,50,000/- to accused for manufacture of silver vessels and plates , thereafter the accused failed to get manufactured silver articles instead he had issued cheque to complainant dated: 30.10.2006 which has been admitted by accused that seal , signature, cheque and account numbers are all belongs to him discloses credibility of complainant's case. 25 Crl.A.No.1414/2014
This court also relied on Sec.102 of Evidence Act :
On whom burden of proof lies - The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
(b) A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was obtained by fraud which A denies.
If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved.
Therefore the burden of proof is on B. Viewing from any angle there is no doubtful circumstance for setting aside the judgment of conviction and sentence passed by Trial Judge , and also there is no reasonable grounds to interfere in to the judgment and sentence passed by learned Trial Judge. The preponderance of probability also lies in 26 Crl.A.No.1414/2014 favour of the complainant than the accused. Accordingly, this court hold Point No.1 in the Negative.
18. POINT No:2 In view of my finding to the point No.1 and for reasons discussed above, I proceed to pass following ORDER The Criminal Appeal filed by the appellant under Sec.374 Cr.P.C. is hereby dismissed.
Order of conviction and sentence passed by XV Addl.CMM, Bengaluru in CC.No:5790/2007 dated:
14.11.2014 is hereby confirmed.
Send LCR along with the copy of this order forthwith to the trial court.
(Dictated to the Judgment writer on Computer, corrected by me and pronounced by me in the open court on this 21st day of November 2015) (A.VIJAYAN), LXVI Addl.CC & SJ, Bangalore.
27 Crl.A.No.1414/2014Order passed and pronounced in open court with following Operative portion:
ORDER The Criminal Appeal filed by the appellant under Sec.374 Cr.P.C. is hereby dismissed. Order of conviction and sentence passed by XV Addl.CMM, Bengaluru in CC.No:5790/2007 dated:
14.11.2014 is hereby confirmed.
Send LCR along with the copy of this order forthwith to the trial court.
LXVI Addl.CC & SJ, Bangalore.