Bangalore District Court
Sri. Balaji Builders And Developers vs Sri. Mahesh A.B on 1 December, 2020
IN THE COURT OF THE LVIII ADDL.CITY CIVIL AND
SESSIONS JUDGE (CCH-59), BENGALURU CITY.
Dated this the 01st day of December 2020
PRESENT
Sri.G.L.Lakshminarayana, B.Com.,LL.B.,
LVIII Addl. City Civil & Sessions Judge (CCH-59),
Bengaluru.
: CRIMINAL APPEAL NO.1770/2017:
APPELLANTS : Sri. Balaji Builders and Developers
Rep by its Proprietor
Sri.T.V. Srinivasa Murthy
S/o T.S. Venkatesha Murthy
Aged about 42 years
R/at No.47/2-2, 2nd Floor,
South End Road,
Basavanagudi, Bengaluru.
(By Sri.Suneel S. Narayan. Adv.,)
V/s
RESPONDENT: Sri. Mahesh A.B.
S/o Basappa
Age Major
Residing at C/o Arun Building
Kithaganahalli, Hosur Road,
Anekal Taluk, Bengaluru District.
(By Sri.R.A. Advocate)
2 Crl.Apl.1770/2017
: JUDGMENT :
The appellant/accused has preferred an appeal under section 374 of Cr.P.C, to set aside the judgment of conviction and order of sentence passed in C.C.No. 4072/2015 dated 23.11.2017 on the file of learned XVI Additional Chief Metropolitan Magistrate, Bangalore by allowing the appeal and to acquit the appellant/accused.
2. The parties to the appeal are hereinafter referred to their ranks assigned to them before the Trial Court for the sake of convenience.
3. The facts scenario of the case as per complainant is as under:
The complainant has filed a private complaint under section 200 of Cr.P.C., against the accused for the offence punishable under section 138 of N.I.Act in P.C.R. No.2143/2015 alleging that the accused is doing real 3 Crl.Apl.1770/2017 estate business in booking flats in the name and style "Sri. Balaji Builders and Developers". He is the proprietor of the said firm. The accused has received Rs.2,00,000/-
from the respondent towards the booking of the flat in Jaithra Towers, Flat No.111, First floor, East facing, Block B, 2 Bed room, situated at Chandapura Village, Attibele Hobli, Anekal Taluk, Bengaluru. The respondent paid the said amount by way of 2 (two) cheques bearing No.005455 and No. 004379 dated 13.11.2013 and 25.06.2014 respectively drawn on Corporation Bank for Rs.1,00,000/- each. Further the accused had executed a token receipt dated 20.08.2014 and the said cheques were duly encashed. The respondent further contended that both the parties orally agreed to terminate the contract and appellant/ accused agreed to refund the amount of Rs.2,00,000/- and issued a cheque bearing No.589237 dated 30.11.2014 for a sum of Rs.2,00,000/-
4 Crl.Apl.1770/2017 drawn on Allahabad Bank, Basavanagudi Branch, Bengaluru. Further the respondent /complainant presented the said cheque through his banker and the bank has given an endorsement with shara "Funds Insufficient". Thereafter the complainant issued a legal notice on 20.12.2014 through RPAD calling upon the accused to repay the cheque amount and the notice was duly served upon the accused. In spite of receipt of legal notice the accused has not paid the cheque amount. Hence, the complainant has filed the complaint.
4. The trial court took cognizance of the offence, sworn statement of the complainant was recorded and registered a case and issued summons to the accused persons.
5. In response to the court summons accused appeared before the court and he was released on bail.
5 Crl.Apl.1770/2017 Accusation was framed by the trial court, read over and explained to the accused. The accused has pleaded not guilty and claimed to be tried.
6. In order to prove her case, the complainant himself examined as PW-1 and got marked Ex.P.1 to Ex.P.6 documents and closed his side. After closing the evidence of the complainant, the statement of accused under section 313 of Cr.P.C. was recorded. There is no evidence on behalf of the accused. Ex.D.1 and Ex.D.2 are marked through P.W.1.
7. After hearing the arguments of both side and appreciating the oral and documentary evidence, the learned XVI Additional Chief Metropolitan Magistrate, Bengaluru City, by impugned judgment and order of sentence dated: 23.11.2017, convicted the accused for 6 Crl.Apl.1770/2017 the offence punishable under section 138 of Negotiable Instruments Act and sentenced him to pay fine of Rs.2,25,000/- and in default of payment of fine amount, he shall undergo simple imprisonment for one year and out of the fine amount a sum of Rs.2,15,000/- is ordered to be paid as compensation to the complainant and the balance amount of Rs.10,000/- shall be remitted as fine to the State.
8. Being aggrieved by the judgment of the trial court, the appellants/accused has preferred an appeal on the following grounds:
The learned trial judge totally failed in appreciating the evidence that, the appellant has marked Ex.D.1 and Ex.D.2 (receipt and cash receipt) by confronting the same to the respondent and further respondent in his cross examination has admitted the contents of the said 7 Crl.Apl.1770/2017 documents. The court below gravely erred in failing to see that the respondent has clearly admitted the fact that he had received a receipt dated 28.08.2014 i.e. Ex.D.1 from the appellant and further respondent also clearly admitted the fact that on 13.07.2017 a cash receipt he has received the amount. Further the court gravely erred in failing to see that appellant had placed proper evidence to rebut the presumption arised in favour of the respondent, but the respondent had totally failed in proving the transaction that he had received back the said amount. Amongst other grounds, the appellant/accused has sought to allow the appeal and to set aside the impugned judgment and order passed by the trial court.
8 Crl.Apl.1770/2017
9. After service of notice of appeal, the respondent/complainant appeared before the court through his counsel.
10. Trial Court records are received.
11. Heard the arguments of learned counsel for the respondent and learned counsel for the appellant has submitted written argument. Perused the records.
12. The following points arise for my consideration:-
1. Whether the trial Court has committed an error in convicting the accused for the offence punishable under Section 138 of Negotiable Instruments Act and it requires interference by this court.
2. What order?
9 Crl.Apl.1770/2017
13. My findings on the above points are as follows:-
POINT NO.1 - Negative;
POINT NO.2 - As per final order for the following:-
: REASONS:
14. POINT NO.1: The complainant has taken the contention that accused has received Rs.2,00,000/- from him towards the booking of flats. The complainant has paid an amount by way of two cheques. In this regard accused has executed on token receipt dated 20.08.2014. The cheques are duly encashed. For want of better title in respect of the said property, the sale transaction would not complete. Both the parties orally agreed to terminate the contract for which the accused has agreed to return the token amount of Rs.2,00,000/- was paid at the time of booking the flat. Towards the repayment of the said 10 Crl.Apl.1770/2017 amount accused has got issued cheque for Rs.2,00,000/- drawn on Allahabad Bank, Basavanagudi Branch. By believing the assurance of the accused, the complainant presented the said cheque, but the said cheque was returned with endorsement that "Funds Insufficient". The same has been intimated to the accused and complainant has issued legal notice to discharge the liability of the accused. After service of legal notice the accused did not repay the amount.
15. P.W.1 in his chief examination reiterated the facts as alleged in the complaint. In his cross examination deposed that there is no agreement in between himself and accused with regard to purchase of "Chaitra towers flat". The learned counsel for the accused in his cross examination put the suggestion that accused has repay the full amount of Rs.2,00,000/-, thereafter the accused has obtained the acknowledgment on the 11 Crl.Apl.1770/2017 stamp paper from him. But witness voluntarily stated that accused never repay the amount to him. Further P.W.1 in his cross examination deposed that on 30.11.2014 accused has issued cheque in his favour. Further P.W.1 in his cross examination admitted that he got issued legal notice to the accused. During the cross examination P.W.1 the learned counsel for the accused confronted the Ex.D.1 and Ex.D.2. The said Ex.D.1 and Ex.D.2 are not admitted by the P.W.1. Ex.P.1 it reveals that accused has issued cheque in favour of complainant. The said cheque was presented by the complainant. The banker has given endorsement that "Funds Insufficient". Thereafter on 20.12.2014 the complainant has issued legal notice against the accused calling to settle the amount of Rs.2,00,000/-. Ex.P.4 postal receipt it reveals that legal notice is issued by the complainant. Ex.P.5 it reveals that postal acknowledgment have not yet received 12 Crl.Apl.1770/2017 by the complainant. Therefore his advocate has given requisition to the postmaster Attibele. Accordingly postmaster has issued Ex.P.6, it reveals that the said notice was duly delivered on 22.12.2014. Ex.D.1 and Ex.D.2 are not admitted by the complainant. As per the contention of the accused the accused has paid the amount of Rs.2,00,000/- and cash receipt obtained from the complainant under Ex.D.2.
16. The learned counsel for the accused contended that the trial court has not given any sufficient opportunity to cross examine the P.W.1. Perused the trial court records it reveals that the trial court has given sufficient opportunity to the accused to cross examine the P.W.1. The learned counsel for the accused postponed the same. According to accused, the cheque in dispute came to be issued by him to the complainant for the purpose of security of booking charges of 13 Crl.Apl.1770/2017 Rs.2,00,000/-, that the complainant paid to him while booking the flat. However, the said purpose for issuance of cheque in dispute has not at all been suggested to the P.W.1 in his cross examination by the accused. During the course of cross examination of P.W.1 the learned counsel for the accused confronted the Ex.D.1 and Ex.D.2. On the basis of Ex.D.2 that as on the date of examination of the said document, the complainant has received an amount of Rs.2,00,000/- from him by way of cash, which was deposited to the bank account of the complainant. On the same day the accused has taken back the amount of Rs.2,00,000/- from him. The complainant has admitted the Ex.D.2 contains his signature; it does not dispense the accused with the burden of proving the Ex.D.2. As per law and that too when the complainant has denied its genuineness. There is no date mentioned in the Ex.D.2. After referring the 14 Crl.Apl.1770/2017 plea by the trail court and before led the evidence of P.W.1, Ex.D.2 is preferred by the accused of his whims and fancies. If Ex.D.2 was in genuine document and was in the custody of the accused on 31.07.2015 nothing prevented him from producing the said document during the earlier stage. Accused having failed to produce the said document as given rise to an adverse inference can be drawn against the accused and it creates the doubt of the genuineness of the Ex.D.2. To disprove the case of the complainant the accused neither adduced any oral evidence nor produced any document.
17. Admittedly accused being educated person could not be believed to have refunded the amount to the complainant during the pendency of the present case. According to the complainant, he was not issued that the receipt for Rs.1,00,000/- and that receipt is marked as Ex.D.1, was issued only for Rs.2,00,000/-. The receipt 15 Crl.Apl.1770/2017 assigned by the complainant for not having plea about Rs.3,00,000/- in the legal notice and in the complaint is that Rs.1,00,000/- was refunded to him by the accused. The said cheque was issued only for Rs.2,00,000/-. Though this fact does not find place either in the legal notice or in the complaint. Ex.D.1 is confronted by the accused during course of cross examination of P.W.1 on 13.07.2017 and another Ex.D.2 is confronted by the accused in the cross examination of P.W.1 on 13.07.2017. As on the date of Ex.D.2 the complainant has received an amount of Rs.2,00,000/- from accused by way of cash. Accused not disputed the cheque and signature appearing on Ex.D.1. The learned counsel for the appellant contended that complainant has misused the cheque. If complainant has misused the cheque, what prevent the accused to take legal action against the complainant.
16 Crl.Apl.1770/2017
18. Perused the oral and documentary evidence placed by the complainant, it shows that accused has issued cheque amounting of Rs.2,00,000/- in favour of complainant, the complainant presented the cheque, the same was returned with endorsement that "Funds Insufficient". Thereafter the complainant has issued legal notice to the accused calling upon to settle the amount of Rs.2,00,000/-. The said notice duly delivered upon the accused on 22.12.2014. Thereafter the accused did not repay the loan amount to the complainant. Therefore the trial court rightly convicted the accused for the offence punishable under Section.138 of N.I. Act. I do not find any valid reasons to interfere into the judgment of the trial court. Hence, I answer point No.1 in the negative.
19. POINT No.2: In view of my finding on point No.1, I proceed to pass the following:
17 Crl.Apl.1770/2017 : ORDER :
The appeal filed by the appellant under section 374(3) of Cr.P.C., is hereby dismissed.
The judgment of conviction and order of sentence passed by the learned XVI Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.4072/2015 dated 23.11.2017 is hereby confirmed.
Send TCR to the concerned court along with copy of the judgment forthwith.
(Dictated to the Judgment Writer directly on computer, then corrected and pronounced by me in the open court on this the 01st day of December 2020).
(G.L.Lakshminarayana) LVIII Addl. City Civil and Sessions Judge (CCH-59) Bengaluru City.
18 Crl.Apl.1770/2017 Judgment pronounced in the open Court (vide separate order) : ORDER :
The appeal filed by the appellant under section 374(3) of Cr.P.C., is hereby dismissed.
The judgment of conviction and order of sentence passed by the learned XVI Additional
19 Crl.Apl.1770/2017 Chief Metropolitan Magistrate, Bangalore, in C.C.No. 4072/2015 dated 23.11.2017 is hereby confirmed.
Send TCR to the concerned court along with copy of the judgment forthwith.
(G.L.Lakshminarayana) LVIII Addl. City Civil and Sessions Judge (CCH-59) Bengaluru City.