Bangalore District Court
Ideal Mattress vs No.35A on 20 April, 2023
KABC010117972018
IN THE COURT OF THE LXII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-63), BENGALURU.
DATED: THIS THE 20 th DAY OF APRIL, 2023
P R E SE N T
Sri A. EARANNA, M.Com., LL.M.,
LXII Addl. City Civil & Sessions Judge,
Bengaluru.
CRIMINAL APPEAL No.735/2018
APPELLANTS/ 1. Ideal Mattress,
ACCUSED : No.35A, BDA Complex,
HSR layout,
Bengaluru-560102.
Rep. By its partner.
2. Muddasier Ahmed,
Ideal Mattress,
No.35A, BDA Complex,
HSR layout,
Bengaluru-560102.
(By Sri.Abhilesh J., Advocate)
VS
RESPONDENT/ Smt.Payal Kishore Kumar,
COMPLAINANT: Represented by SPA Holder,
Kishore Sureshlal,
S/o.Sureshlal Hiralal,
Aged about 44 years,
No.17, Subramanya Swamy
Temple Street, V.V.Puram,
Bengaluru-560004.
(By Sri.Vijay Kumar,
Advocate)
2 Crl.A.No.735/2018
JUDGMENT
This is a criminal appeal preferred by the appellant/accused under Section 374(3)(a) of Cr.P.C., being aggrieved by the conviction judgment passed by the learned XXV Addl. Chief Metropolitan Magistrate, Bengaluru, dated 28.03.2018 in C.C.No.28683/2014.
2. For the sake of convenience, the appellants and respondent of the present case will be referred by their original status before the Trial Court. The appellants are the accused and respondent is the complainant before the Trial Court.
3. The brief facts of the case are as under :
The complainant and accused No.2 are known to each other from past three years. The accused No.2 sought for hand loan of Rs.4,50,000/- for a short term urgent business purpose. The appellant No.2 representing the appellant No.1 borrowed a sum of Rs.4,50,000/- on 6.9.2013 and executed promissory note and consideration receipt in favour of the complainant and acknowledged the receipt of amount and also undertook to repay the same with interest at 1% p.m. On repeated requests made by the 3 Crl.A.No.735/2018 complainant to repay the borrowed amount, the appellant No.2 issued cheques bearing No.814675 dt.6.1.2014 for Rs.1,50,000/-, 814676 dt.6.2.2014 for Rs.1,50,000/-, 814677 dt.6.3.2014 for Rs.1,50,000/-. On presentation of the said cheques, the same was returned as "Payment stopped by the drawer" on 10.03.2014. Thereafter complainant got issued legal notice on 15.3.2014 and the same has been duly served on 17.3.2014. But the accused have not bothered to repay the cheques amount even after expiry of 15 days from the date of issuance of notice.
Hence the complainant was constrained to file complaint alleging that accused have committed the offence punishable U/s.138 of N.I.Act.
4. Thereafter, the learned Magistrate has taken cognizance of the offence and recorded sworn-statement of the complainant. The Trial Court after finding a prima-facie case against the accused registered the case and issued process. The accused on service of summons appeared before the Trial Court and was enlarged on bail. Plea was read over and explained to the accused. Accused pleaded not guilty and claimed to be tried. The case was posted for trial of the accused.
4 Crl.A.No.735/2018
5. In order to bring home the guilt of the accused, the special power of attorney holder of the complainant examined himself as P.W.1 and got marked documents at Exs.P.1 to P.21. After closing the evidence of complainant's side, the accused has cross examined the P.W.1. Accused examined U/s 313 of Cr.P.C. statement, in which he totally denied the entire case of the complainant. In support of his defense, the accused No.2 examined himself as D.W.1 and no documents are marked.
6. After hearing both the parties, on appreciation of oral and documentary evidence on record, the learned Magistrate has convicted the accused/appellants for the offence punishable under section 138 of N.I. Act and sentenced them to pay a fine of Rs.5,10,000/- and in default of payment of fine to undergo S.I. for one year. It is further ordered that a sum of Rs.5,00,000/- be paid to the complainant as compensation and Rs.10,000/- be confiscated to the State.
7. Aggrieved by the impugned Judgment of the Trial Court, the appellant/accused are before this Court with this appeal. The accused contended that the Judgment of 5 Crl.A.No.735/2018 the Trial Court is perverse, capricious, illegal and un- sustainable under law. The trial Court has not properly appreciated the evidence on record. The appellant contended that respondent is not having capacity to pay the amount of Rs.4,50,000/- to the accused and the accused has no need to take the loan from the complainant. The husband of the respondent was known to the accused as he was visiting to the office of the appellant often and at that time, he has taken the cheques and other documents and the same were misused by the respondent and presented the same. Then the appellant has informed to his banker to stop the payment, but the same is not considered by the trial Court and passed the impugned Judgment. The legal notice which was issued by the respondent is not served on him and the same is not considered by the trial Court, straight away come to conclusion that the accused is entitled to pay the cheques amount and passed the impugned judgment, which is contrary to law and facts. Therefore, he prays to set aside the judgment passed by the Trial Court.
6 Crl.A.No.735/2018
8. Trial Court record was called for. The respondent appeared before the Court through his counsel on service of notice.
9. The following points arise for the consideration of the court :-
1) Whether the complainant has proved that the accused have committed an offence punishable under Section 138 of N.I.Act?
2) Whether the Judgment of the Trial Court is un-sustainable under law?
3) Is there any necessity to intervene in the order of the Trial Court?
4) What order?
10. The findings of the Court on the aforesaid points are as under :
Point No.1 :- In the Affirmative, Point No.2 :- In the Negative, Point No.3 :- In the Negative, Point No.4 :- As per final order for the following:
REASONS
11. POINT NOs.1 to 3:- As Points No.1 to 3 are inter- related, they are taken up together for discussion to avoid repetition of facts and evidence.
7 Crl.A.No.735/2018
The counsel for the appellant has filed the written arguments contending that the Trial Court has not considered the evidence and documents and passed the impugned judgment. He further taken contention that the legal notice which was issued by the respondent is not served on the appellant and the same is not considered by the trial Court and passed the impugned judgment. The respondent is not having capacity to pay the amount of Rs.4,50,000/- to the accused and the accused has no need to take the loan from the complainant. The husband of the complainant is known to the appellant. The husband of the respondent was visiting to the office of the appellant often and often and he was taken the cheques and other documents and the same were misused by the respondent and presented the same. Then the appellant has informed to his banker to stop the payment, but the same is not considered by the trial Court and passed the impugned Judgment. Even the respondent has not produced the Income Tax returns nor other documents to hold that the appellant is having an amount of Rs.4,50,000/- in his account. Without considering the same, they passed the impugned Judgment. Therefore, he prays to set aside the 8 Crl.A.No.735/2018 Judgment and prays to acquit the accused for the above said offence.
12. The counsel for the complainant has also filed the written arguments stating that the appellant is known to the respondent. He approached the complainant in the month of August 2013 seeking the hand loan of Rs.4,50,000/- as he wants to improve his business. The respondent paid a hand loan of Rs.4,50,000/- on 6.9.2013. He agreed to repay the same within short time. Inspite of it, the appellant has not repaid the same. On the other hand, the appellant had issued cheques bearing No.814675 dt.6.1.2014 for Rs.1,50,000/-, 814676 dt.6.2.2014 for Rs.1,50,000/-, 814677 dt.6.3.2014 for Rs.1,50,000/-. He has stated that on presenting the said cheques after three months for encashment, they will be honoured. But, the said cheques on presentation, were dishonoured. The respondent got issued the legal notice. After receipt of the legal notice, he has not paid the above said amount nor replied to the said notice. Thereafter the respondent filed the complaint before the XXV ACMM Court, Bengaluru. After considering the evidence and documents produced, the Court has rightly come to conclusion that the appellant 9 Crl.A.No.735/2018 is directed to pay a a fine of Rs.5,10,000/- and in default of payment of fine to undergo S.I. for one year. Out of the fine amount amount, the Court has ordered to pay a sum of Rs.5,00,000/- to the respondent. Instead of paying the said amount, he has preferred the appeal, which is not maintainable. Therefore, he prays to dismiss the appeal and prays to upheld the Judgment of the XXV ACMM Court.
13. On perusal of the records that one Smt.Payal Kishore Kumar, wife of Kishore Sureshlal has presented the complaint before the XXV ACMM Court seeking that she had paid hand loan amount of Rs.4,50,000/- to the accused No.1 and 2. The accused No.1 is the Ideal Mattress - partnership firm and the accused No.2 is the Muddasier Ahmed, who approached the complainant for a hand loan as he wanted the amount urgently for his business purpose, she had paid the same. In order to prove her case, the Kishore Sureshlal was examined as P.W.1 and he has filed the examination-in-chief by re- iterating the complaint averments. He has got marked in all Ex.P.1 to P.21. On the other hand, the accused No.2- Muddasier Ahmed was examined as D.W.1, but he has not 10 Crl.A.No.735/2018 got marked any document. As per the records, that the accused is known to the husband of the complainant since more than four years. P.W.1 has stated in his evidence that his wife has filed the present complaint against the accused persons. The accused No.1 is the Ideal Mattress distributor is the partnership firm, accused No.2 is the partner of accused No.1. The accused have approached the complainant in the month of August 2013 seeking hand loan amount of Rs.4,50,000/- on 6.9.2013. At the time of payment of said amount, husband of the complainant and the accused No.2 were present. The amount of Rs.4,50,000/- was paid by way of cash to the accused No.2. The accused agreed to repay the same within the short period. Inspite of it, the accused have not paid the said amount. The complainant demanded repeatedly to repay the same. But the accused has not repaid the same. On the other hand, on 6.1.2014 the accused has issued the cheques bearing No.814675 dt.6.1.2014 for Rs.1,50,000/-, 814676 dt.6.2.2014 for Rs.1,50,000/-, 814677 dt.6.3.2014 for Rs.1,50,000/- stating that if the cheques were presented for encashment, the same will be honoured. Believing the words of the accused, the complainant had 11 Crl.A.No.735/2018 presented the above said cheques through her banker for collection. The said cheques were returned as "Payment stopped by the drawer". After receiving the bank endorsement, the complainant has got issued the legal notice as per Ex.P.9 on 15.3.2014 calling upon the accused No.1 and 2 to repay the above said cheque amount. After receiving the said notice, the accused No.1 and 2 have not repaid the said amount. On the other hand, the counsel for the appellant has taken contention that no notice was served on the accused persons. If the notice was served, then they may issued reply to the said notice. Therefore, on these grounds the complaint itself is not maintainable and the same is liable to be dismissed. On perusal of Ex.P.9, it reveals that the accused No.1 is the Ideal Mattress and its office is situated at HSR Layout, Bangalore and the accused No.2 is the Muddasier Ahmed residing at No.70, 17th C Main, 11th Cross, HSR layout, Bangalore, Ex.P.10 to 12 are the postal receipts and Ex.P.13 to 15 are the postal acknowledgements, which reveals that the notice was taken by the accused persons. D.W.1 in his evidence he deposed that, it is true to say that I am partner of accused No.1. It is true to say that the address of the 12 Crl.A.No.735/2018 accused No.1 shown in cause title is correct. D.W.1 admitted in the evidence that the address mentioned in the cause title his partnership firm is situated. Such being the case, counsel for the appellant has taken contention that no notice was served on the appellant. As per Section 27 of General Clauses Act, 1897, if the notice was sent to the correct address of the parties, then the notice was returned for one or other reasons stating that address left, not claimed, returned to sender, intimation delivered etc., then as per the above said provisions, it deems that the notice was duly served. Here in this case, the D.W.1 himself admitted in the cross-examination that the address of accused No.1 mentioned in the cause title is true. Even the appellant has not produced any iota of evidence stating that accused No.2 is not resided in the address mentioned in the complaint. When the appellant has not taken contention that no notice was served on him, then the burden is on the accused to prove that he was not resided in the address mentioned in Ex.P.9 and that he was resided in different address. Even he has not stated in the examination-in-chief or in the cross-examination about his address where he was resided at the time of issuing Ex.P.9. 13 Crl.A.No.735/2018 On the other hand, Ex.P.13 to 15 reveals that Ex.P.9 was duly served on the accused person. Therefore, the contention taken by the appellant holds no water.
14. The counsel for the appellant has taken contention that the respondent is not capable to pay huge amount of Rs.4,50,000/- and she has not produced any document to prove that she is capable to pay the huge amount. The trial Court has not considered the same, passed the judgment. On the other hand, the respondent had stated that she was having premises and building, she is getting rents from the said premises. On the other hand, the respondent had produced the document, which clearly shows that she is having sufficient means to pay the above said amount and she has produced Ex.P.20 which is the cash book and Ex.P.21-Income Tax Returns, which reflects that she has declared her income as Rs.47,10,093/-. When she declared her income, in the Income Tax Returns, it clearly reveals that the respondent is having sufficient means to pay the said amount. On the other hand, the appellant has taken contention that the appellant is not known to the complainant/respondent and he knows the husband of respondent. It is not disputed that the 14 Crl.A.No.735/2018 appellant and respondent are running the above said business. It is also not disputed that the appellant and husband of respondent are known to each other. On the other hand, D.W.1 deposed that he knows the husband of the respondent since four years. When he knows the husband of respondent since four years, then he may know the respondent when he visits the house of respondent seeking hand loan of Rs.4,50,000/-. If the appellant is not known to the respondent, then she may not give the amount of Rs.4,50,000/-. On the other hand, the said amount was transferred to the account of the accused, same was reflected in Ex.p.16 and 17. On other other hand, counsel for the appellant had taken contention that Ex.P.16 to 21 does not bears the signature and seal of the authorities. Such being the case, from the said document, the Court cannot come to conclusion that the respondent has paid the said amount. As per the evidence of P.W.1, he has stated that Ex.P.16 and 17 are the computer generated copies. Normally in the computer generated copies, signature or seal may not be put to the said document. Ex.P.21 is the Income Tax Returns, when the parties have declared the income and submitted the Income Tax returns 15 Crl.A.No.735/2018 in the prescribed form, then the authorities will not put their signatures or seal in the said document. As per the Income Tax Act, that the form should be submitted. Then the authorities may not put their signatures. Therefore, the contention taken by the appellant holds no water.
15. Counsel for the appellant vehemently argued that Ex.P.19 and Ex.P.20 are created for the purpose of case and the same cannot be considered. During the course of business, the parties may maintain ledger book and cash book, then such documents cannot be thrown out as it was not bears signature or seal. Normally in the course of business transactions, the businessman may not maintain the account ledger books i.e. Ex.P.16, 17 and 19. In the present case P.W.1 deposed that one clerk will written the same. The appellant has taken contention that one Rameshchandra, who is the clerk, who maintains the ledger books and accounts. Said person is not examined by the respondent and the same is not considered by the trial Court. On the other hand, the respondent has placed Ex.P. 1 to P.21 and the evidence of P.W.1, which clearly reveals that during the course of business transactions as per the instructions of the complainant, Rameshchandra has 16 Crl.A.No.735/2018 entered the ledger accounts. Mere non examination of Rameshchandra is not thrown out the entire evidence and documents placed by P.W.1. Normally, the businessman or companies may take the services of persons to maintain the daily transactions i.e. out going and incoming amount and other bills etc. Then such documents can be believable by the Court as they are maintaining during the course of their business transactions. Therefore, the contention taken by the appellant that Rameshchandra is not examined is holds no water.
16. It is the contention of the appellant that, the Kishore Sureshlal is known to the accused and as he was visiting to the office of the appellant often and at that time, he has taken the cheques and other documents and the same were misused by the respondent and the same is not considered by the trial Court. Therefore, prays to set aside the judgment and to allow the appeal.
17. On perusal of the records, it reveals that the accused No.1 is the Ideal Mattress, is the partnership firm, the accused No.2 is the partner of the accused No.1 and the same is not disputed by the accused No.1 and 2. It is also 17 Crl.A.No.735/2018 not disputed that the accused No.1 and 2 are doing the business of mattresses and it is also not disputed the since more than 5 to 6 years the accused No.1 and 2 were running the business of mattress and it seems that the accused No.1 and 2 have registered before the competent authority to run the partnership firm. Then the accused No.1 and 2 were well aware of effect of issuance of cheques and other documents to any other person. In the present case, the appellant has taken contention that he has kept the blank signed cheques and other documents in the office. The defense of the accused is that, the P.W.1 has taken the said cheques, which were kept in his office. It is to be noted that, businessmen will not keep the cheque with signature, not mentioning the other particulars in the cheque. On the other hand, the respondent had produced Ex.P.2-On Demand Promissory Note, which is signed by the accused No.2. D.W.1 has not denied the signatures appeared in Ex.P.2 to P.5, which were issued in favour of the respondent. Even the prudent man cannot keep the cheques and promissory note signing the same without mentioning the particulars on the cheques and promissory note. For the sake of argument, assuming that the blank 18 Crl.A.No.735/2018 signed cheques and promissory note were kept in the office, then the P.W.1 has taken the same and the same were misused, then why he has not taken any legal action against the P.W.1 or complainant stating that Ex.P.3 to P.5 were not issued for discharge of any debt. Even after receipt of Ex.P.9-legal notice, he has not taken any steps stating that he has not issued Ex.P.2 to P.5 to the complainant or P.W.1 and even he has not gave notice to the complainant or P.W.1 stating that he has not taken any loan as stated in the notice and why he has not asked the complainant or P.W.1 to return Ex.P.2 to P.5 and he has not issued the same for discharge of the debt. Even he has not stated that he has not taken loan and same was not issued for the discharge of debt. As already explained above, the accused No.1 and 2 running the partnership firm since more than 5 to 6 years. Then the accused No.1 and 2 were well aware of effect of issuance of cheque. Even after receipt of legal notice, he has not taken any legal action against the complainant. D.W.1 admitted in the evidence that, "I did not ask complainant for return of cheque in writing". He further deposed in his evidence that "all the cheques were crossed cheques. It is true to say 19 Crl.A.No.735/2018 that I had authorised my staff to fill up the blank cheques and documents on my behalf. It is true to say that I am the partner of accused No.1". D.W.1 himself admitted in the evidence that he has not asked the complainant to return the cheques which were alleged to be taken by the P.W.1. As already stated above, that the accused No.1 and 2 are not illiterate and they are runing the partnership firm by doing the mattress business. As per the evidence of D.W.1, P.W.1 known to him and he was frequently visiting the office situated at BDA complex, Bengaluru. As per the evidence of D.W.1, his staff is also authorised to fill up the blank cheques. He himself admitted the same in his evidence that he had authorized his staff to fill up the documents. Even he has not examined any of his staff stating that Ex.P.3 to P.5 were not issued to the complainant to discharge any debt. Even he has not at all produced any other document to show that he has issued the intimation notice stating that the cheques were not issued for discharge of debt and on the other hand, the counsel for appellant argued that cheques and on demand promissory note were misused by the complainant, but in this regard no legal action nor police complaint is lodged by 20 Crl.A.No.735/2018 the accused No.1 and 2 before the competent authority. These are all the circumstances clearly reveal that the accused No.1 and witness obtained hand loan of Rs.4,50,000/- and in turn the accused No.1 and 2 issued the cheques Ex.P.3 to P.5 to discharge the debt.
18. The counsel for the appellant argued that, the complainant is known to the accused No.1 and 2 and Ex.P.2 to 5 were misused by the complainant. As per the evidence of D.W.1, Ex.P.2 to P.5 were taken by the P.W.1. The appellant has not taken contention that, the complainant was visiting often and often to the office of the accused No.1 and 2 and taken Ex.P.2 to P.5. On the other hand, the appellant has taken contention that the complainant is not capable to give any loan of Rs.4,50,000/-. In this regard the trial Court has not considered the same.
19. On perusal of evidence of P.W.1, the complainant is having sufficient means and she was getting rents and already explained above that she has produced Ex.P.21, which is the IT returns, which clearly reflects the income declared in Ex.P.21. Ex.P.21 issued by the competent 21 Crl.A.No.735/2018 authority, but in the said document the competent authority may not put their signature or seal. The accused No.2 admitted the signature on Ex.P.2 to 5, then they cannot say that they have not filled up Ex.P.2 to P.5. Even they have not taken any legal steps stating that the writings in Ex.P.2 to P.5 were not belongs to them and the same is filled up by the complainant. Therefore, the defense taken by the appellant holds no water. On the other hand, the complainant had produced all the relevant and cogent documents and evidence to prove that the accused No.1 and 2 have obtained hand loan of Rs.4,50,000/- and in turn the accused No.1 and 2 had issued Ex.P.3 to 5 for discharge of debt. Therefore, the appellant has failed to produce the rebuttal evidence.
20. The counsel for the respondent relied the following judgments of Hon'ble High Courts and Ho'ble Supreme Court.
1. 2017(2) AKR 12 in K.L.Agarwal -Vs- Paramount Solutions.
2. 2014(3) DCR 488 in Sujith Singh Vs. Amarpal Singh Tiwana.
3. 2014(2) DCR 136 in Surendra Thakral Vs. State & Another.
22 Crl.A.No.735/2018
4. Crl.L.P.567/2014 in Lekh Raj Sharma -Vs- Yash Pal Gupta.
5. 2008 (1) AIR Kar R 398 in Smt.K.Vasantha Kumari -Vs- D.Devendra Reddy.
6. (2010) 11 Supreme Court Cases 441 in Rangappa -Vs- Sri.Mohan.
7. Judgment in C.R.No.505/2014 in Smt.Purnima Dhar Goyary -Vs- Sri.Samir Dey.
8. 2012(4) KCCR 2634 in Sri Prakash @ Jnanaprakash -Vs- Miss T.S.Susheela.
9. 2015(1) KCCR 235 in Lale Patel -Vs- Sharanbasappa.
10. ILR 2001 Kar 4127 in S.R.Muralidar -Vs- Ashok G.Y.
11. (2016) 3 Supreme Court Cases 1
12. AIR 2000 Karnataka 169.
With due respect to the ratios laid down by the Ho'ble Supreme Court and the Hon'ble High Courts are applicable to the present case in hand.
21. This Court relied on the citations reported in 2010 AIR SC 296 Rangappa Vs Mohan wherein the Hon'ble Supreme Court has held that the presumption that the cheque was drawn in discharge of legally recoverable debt is a presumption of law that ought to be raised in every case.
23 Crl.A.No.735/2018
22. In addition to this in the case of T.P. Murugan (Dead) Through legal representatives Vs Bojan (2018 (8) SCC 469), the Hon'ble Cout has held that "once the cheque has been signed and issued in favour of the holder of the cheque, there is statutory presumption that the cheque is issued in respect of legally enforceable debt or liability". In the present case the appellant has not denied the issuance of cheques and signature on the said cheques. When the appellant admitted the issuance of the cheques then burden lies on the appellant to prove that he has not issued cheques for discharge of liability. Therefore with due respect ratio laid down in the above said judgments are applicable to the present case on hand. However based on the above said judgments the appellant has not produced the rebuttal evidence, therefore the appellant has not proved his defence.
23. The learned Trial Court has considered the documents and evidence placed by the parties and also payment made by the accused, then passed the judgment and sentence. Therefore there is no reason to interfere with the judgment passed by the Trial Court. Accordingly, Point 24 Crl.A.No.735/2018 No.1 is answered in the Affirmative and Points No.2 & 3 are answered in the Negative.
24. POINT NO.4: In view of the discussions made on Points No.1 to 3, I proceed to pass the following:
OR D E R The Criminal Appeal preferred by the appellants/accused U/Sec.374 (3)(a) of Cr.P.C is hereby dismissed.
The impugned judgment of
conviction and sentence passed by the
learned XXV Addl. Chief Metropolitan
Magistrate, Bengaluru, dated 28.03.2018 in CC.No.28683/2014 is hereby confirmed.
Send back the Trial Court records along with copy of this Judgment to the Trial Court forthwith.
(Dictated to the Judgment Writer, transcribed by her, corrected by me and then pronounced in the Open Court on this the 20 th day of April, 2023).
(A. EARANNA) LXII Addl.City Civil & Sessions Judge, Bengaluru.25 Crl.A.No.735/2018
Order pronounced in open court, vide separate judgment.
OR D E R The Criminal Appeal preferred by the appellants/accused under Sec.374 (3)(a) of Cr.P.C is hereby dismissed.
The impugned judgment of
conviction and sentence passed
by the learned XXV Addl. Chief
Metropolitan Magistrate,
Bengaluru, dated 28.03.2018 in
CC.No.28683/2014 is hereby
confirmed.
Send back the Trial Court
records along with copy of this
Judgment to the Trial Court
forthwith.
LXII Addl. City Civil &
Sessions Judge, Bengaluru.
26 Crl.A.No.735/2018