Bangalore District Court
Umesh.A.C vs Anandan.M on 26 March, 2016
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU, (CCH-61)
Dated this the 26th day of March, 2016
:Present:
Sri B.Jayantha Kumar, B.A.,Law, LL.M.
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl. Appeal. No.990 / 2015
Appellant :- Umesh.A.C.
Proprietor of M/s.S.M.Constructions
Buiklders and Developers
No.137, 9th Cross, Margosa Road
Behind Vijaya ENT Care
Malleshwaram
Bangalore-560 003
(Rep by Sri Krishna.R, Advocate)
Vs
Respondent:- Anandan.M.
Proprietor of M/s.Prabhu Enterprises
r/at: No.34, Freedom Fighter Nagar
Near Laggere Bridge
Bangalore -560 058
(Rep by Sri S.Nagabhushana, Advocate)
2 Crl.A.990/2015
JUDGMENT
This appeal is filed u/sec.374(3) of Cr.P.C. challenging the Judgment dated 15.06.2015 passed by the XX ACMM, Bengaluru in C.C.No.329/2013 convicting the appellant/ accused for the offence punishable u/s.138 of Negotiable Instruments Act and sentencing him to pay a fine of Rs.6,60,000/- and in default to undergo simple imprisonment for six months.
2. The appellant is accused and respondent is the complainant before the lower court. Hereinafterwards, the parties are referred to as per their ranks assigned to them before the lower court.
3. The brief facts leading to this appeal are as follows:-
The accused had invited quotation for work of providing shuttering/centering work including labour charge to be carried at Raj Serenity, Begur Village, Bangalore South Taluk and 3 Crl.A.990/2015 complainant had submitted his quotation dt.17.7.2011 to the accused. Accused had accepted the quotation of complainant at the finalized rate of Rs.28/- per square feet for centering work and Rs.75/- per square feet for fixing stair case to the entire 13 floors of the apartment including all roof slabs, beams and staircases etc., and upon concluding the terms and conditions of the work order as per letter dt.22.7.2011, the complainant carried out his part of the work and for the reasons best known to the accused, the accused terminated the contract with the complainant and in order to continue the work as per the letter dt.22.7.2011, the accused had purchased all centering materials belonging to the complainant and promised the complainant to pay for the materials as well as the pending amounts towards the work executed by the complainant. In order to discharge the liabilities towards the complainant, the accused issued cheques for Rs.15,75,000/-
bearing No.910162 to 910168 for Rs.2,25,000/- each drawn on State Bank of Mysore, Malleshwaram, Bangalore. Complainant 4 Crl.A.990/2015 presented the cheques bearing No.910162 dt.25.7.2012 and 910163 dt.25.08.2012 for an amount of Rs.2,25,000/- each, through his banker Indian Overseas Bank, Sampige Road Branch, Bangalore and the said cheques returned unpaid with an endorsement 'insufficient funds' in the bank account of accused on 12.9.2012. Thereafter, the complainant got issued a legal notice on 03.10.2012 to the accused calling upon him to pay the cheque amount. Said notice was duly served upon the accused on 4.10.2012. But the accused has not paid the cheque amount. Hence, the complainant presented the complaint before lower court alleging the offence punishable u/s 138 of Negotiable Instruments Act.
4. After filing of the private complaint, the learned Magistrate took cognizance of the offence and issued summons to the accused, who put in appearance through his counsel and thereafter, the lower court recorded the plea of the accused 5 Crl.A.990/2015 and the accused pleaded not guilty and claimed to be tried. Hence, the trial was conducted by the lower court.
5. In the lower court, the complainant him examined himself as P.W.1 and got marked Ex.P1 to 10. After conclusion of trial, statement of accused u/s 313 of Cr.P.C. was recorded. The accused denied all the incriminating circumstances appeared in the prosecution evidence. Accused has not let in any defence evidence and not produced any documents.
6. On hearing the parties, learned Magistrate recorded a finding that the accused has committed an offence punishable u/s 138 of Negotiable Instruments Act and passed the sentence against the accused as aforesaid.
7. Feeling aggrieved by the impugned judgment and sentence passed, the accused preferred this appeal inter-alia contending that the impugned judgment and conviction passed by the learned Magistrate is illegal, improper, arbitrary and unsustainable in law. The lower court has committed grave 6 Crl.A.990/2015 error in not appreciating the evidence and documents on record in its proper perspective. The court below has erred in arriving at assumption and presumption, regarding the transaction without proper appreciation of the evidence. The lower court has failed to take note of the admissions of the respondent regarding the complete discharge of the debts. Impugned judgment suffers from material illegalities and irregularities in law and hence liable to be set aside and hence, prayed for setting aside the judgment passed by the lower court.
8. After filing of this appeal, this court issued notice to the respondent, who put his appearance through his counsel. Records from lower court are secured.
9. Heard arguments of learned counsel for the respondent. Learned counsel for the appellant has not appeared and addressed any argument despite the service of court notice. Hence, the appeal is posted for judgment on merit.
7 Crl.A.990/2015
10. In the light of the contentions taken up in the memorandum of appeal, the points that arise for my determination are as follows;
1) Whether the lower court has committed an error of law and facts in convicting the appellant/accused for the offence punishable U/Sec. 138 of Negotiable Instruments Act in giving finding that cheques in question were issued for legally recoverable debt?
2) What order?
11. My findings on the above points are as follows:
Point No.1 : In the Negative Point No.2 : As per final Order REASONS
12. Point No.1:- The accused had invited quotation for work of providing shuttering/centering work including labour charge to be carried at Raj Serenity, Begur Village, Bangalore South Taluk and complainant had submitted his quotation 8 Crl.A.990/2015 dt.17.7.2011 to the accused. Accused had accepted the quotation of complainant at the finalized rate of Rs.28/- per square feet for centering work and Rs.75/- per square feet for fixing stair case to the entire 13 floors of the apartment including all roof slabs, beams and staircases etc., and upon concluding the terms and conditions of the work order as per letter dt.22.7.2011, the complainant carried out his part of the work and for the reasons best known to the accused, the accused terminated the contract with the complainant and in order to continue the work as per the letter dt.22.7.2011, the accused had purchased all centering materials belonging to the complainant and promised the complainant to pay for the materials as well as the pending amounts towards the work executed by the complainant. In order to discharge the liabilities towards the complainant, the accused issued cheques for Rs.15,75,000/- bearing No.910162 to 910168 for Rs.2,25,000/- each drawn on State Bank of Mysore, Malleshwaram, Bangalore. Complainant presented the cheques 9 Crl.A.990/2015 bearing No.910162 dt.25.7.2012 and 910163 dt.25.08.2012 for an amount of Rs.2,25,000/- each, through his banker Indian Overseas Bank, Sampige Road Branch, Bangalore and the said cheques were returned unpaid as 'insufficient funds' in the bank account of accused on 12.9.2012. Thereafter, the complainant got issued a legal notice on 03.10.2012 to the accused calling upon him to pay the cheque amount. Said notice duly served upon the accused on 4.10.2012. But the accused has not paid the cheque amount.
13. In order to prove the case of the complainant, the complainant himself examined as PW1 and he has produced documents marked as Ex.P.1 to Ex.P.10. Ex.P.1 and 2 are the two cheques, Ex.P3 and 4 are bank endorsements, Ex.P5 is the copy of legal notice, Ex.P6 is postal receipt, Ex.P7 is postal acknowledgement, Ex.P8 is reply notice issued by the accused, Ex.P9 is the work order issued by the accused. PW1 in his evidence has deposed that the accused had issued cheques in 10 Crl.A.990/2015 question towards discharge of liabilities and the said cheques were returned unpaid when presented to the bank. Though the learned counsel for accused cross examined PW1, nothing has been elicited from his mouth to disbelieve his evidence. A suggestion was put to PW1 that seven cheques were issued for security purpose. PW1 has denied this suggestion. In this case, the accused had issued a reply notice as per Ex.P.8. In the reply notice at para-2, the learned counsel for the accused has stated as follows:-
"2. My client represent to me that upon the said termination, the settlement was arrived at and upon the mutual understanding the amount payable to your client was finalized at Rs.23,00,000/- as on 3.12.2011 and the same is admitted by your client vide letter dt.3.12.2011. However, my client has already paid a sum of Rs.12,00,000/- and the balance payable is only for a sum of Rs.11,00,000/-. This aspect of the transaction has not
11 Crl.A.990/2015 been discussed in the instant notice issued to my client. This clearly goes to show that your client is suppressing the material facts of the transaction."
14. In this reply notice, accused has admitted that there was settlement for Rs.23,00,000/- and he has paid Rs.12,00,000/- to the complainant and a sum of Rs.11,00,000/- is due. Further he has stated that the complainant is doing all this only with a view to extract more money from him and he is only due of Rs.11,00,000/- against the claim of Rs.15,75,000/-. From this reply notice, it is clear that the accused has admitted that he is due to pay a sum of Rs.11,00,000/- to the complainant. In this case, the complainant has claimed amount of two cheques for Rs.2,25,000/- each and therefore, it is clear that the cheques were issued towards discharge of legally recoverable debt. The accused has not adduced any oral evidence and produced documentary evidence to show that the cheques were issued for security purpose. Even in the 12 Crl.A.990/2015 memorandum of appeal, he has not taken specific contentions and he has not stated how the lower court has committed an error in convicting him for the offence punishable U/sec. 138 of Negotiable Instruments Act. Therefore, the complainant has proved that the Ex.P.1 and 2 cheques were issued for discharge of legally recoverable debt and the said cheques were returned unpaid when presented to the bank and even then the accused has not paid the cheque amount in spite of service of legal notice. Therefore, this court has no hesitation to say that the accused has committed offence punishable U/sec.138 of Negotiable Instruments Act and the lower court after appreciating the oral evidence as well as documentary evidence, rightly held that the accused has committed offence punishable U/sec. 138 of Negotiable Instruments Act and rightly convicted the accused and sentenced to pay fine of Rs.6,60,000/- and therefore, there is no need to interfere with the findings of the lower court. Accordingly, I answer point No.1 in the Affirmative.
13 Crl.A.990/2015
15. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER The appeal filed u/sec. 374(3) of Cr.P.C. by the appellant/accused is hereby dismissed.
The judgment passed by the XX ACMM, Bengaluru in C.C.No.329/2013 dated 15.6.2015 convicting the accused for the offence punishable U/Sec. 138 of Negotiable Instruments Act is hereby confirmed.
Send a copy of this judgment to the lower court along with LCR.
(Dictated to the Judgment Writer, transcribed and typed by him, corrected and then pronounced by me in the open court on this the 26th day of March, 2016) (B.Jayantha Kumar) LX Addl.City Civil & Sessions Judge, Bengaluru.
Rrt*