Bangalore District Court
Sri M.Ramakrishna vs Sri N.Sriramareddy S/O on 21 September, 2017
THE COURT OF THE LX ADDITIONAL CITY CIVIL & SESSIONS
JUDGE, BENGALURU
(CCH-61)
Dated this the 21st day of September, 2017
:Present:
Sri S.K.Vantigodi, B.A., LL.B.,
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl. Appeal. No. 27 / 2016
Appellant :- Sri M.Ramakrishna
S/o Arjun Das, Aged about 36 years
r/at: No.791, 14th Main Road
3rd Block, Rajajinagar
Bengaluru-10
(Sri V.Anand, Advocate for Appellant)
Vs
Respondent:- Sri N.Sriramareddy S/o
K.V.Nallaiah,
R/at: No.10/2, 1st Floor, 5th Cross
Rushabavathinagar
Near Mourya School
Lakshminarayanapuram
Bengaluru-560 021
(Sri Ravindra.V. Advocate for Respondent)
JUDGMENT
This appeal is filed U/sec. 374 (3) of Cr.P.C., by the appellant, praying to set aside the judgment of conviction and sentence passed 2 Crl.A.27/2016 by XIII Addl. CMM, Bengaluru in CC No.37137/2011 dt.15.12.2015 for the offence punishable U/Sec.138 of Negotiable Instruments Act.
2. The appellant was the accused and respondent herein was the complainant before the trial Court and they are referred to as per the ranks assigned to them before the lower court.
3. The brief facts which give rise to this appeal can be stated as under:-
The complainant filed private complaint under Sec.200 of Cr.P.c., against accused for offence punishable under Sec. 138 of Negotiable Instruments Act alleging that the complainant entered into agreement of sale with accused in respect of property bearing New No.47 (Old No.1) PID No.10-44-47, Srikanteshwara Nagara, BCC 2nd Division, Mahalakshmipura, Ashokapuram Layout, Bengaluru agreeing to sell the same in favour of the complainant for valuable sale consideration of Rs.50,00,000/- and received advance amount of Rs.15,00,000/- by way of cheque dt.10.12.2008 and further received another Rs.5,00,000/- vide cheque dt.20.12.2008 and to that effect, the accused has endorsed on the agreement of sale.
3 Crl.A.27/2016 The accused again requested the complainant for loan amount of Rs.20,00,000/- and as per his request, the complainant and his wife have paid Rs.20,00,000/- in favour of the accused.
Subsequently, the accused issued two cheques of Rs.10,00,000/- each in favour of complainant on 22.09.2010 towards repayment of said loan amount of Rs.20 lakhs and the said cheques were honoured on presentation.
It is further alleged in the complaint that the accused suppressed the fact that the said property was already mortgaged to State Bank of Mysore. When the complainant enquired with the accused about the said mortgage, the accused requested the complainant for hand loan of Rs.25,00,000/- to clear the mortgage with the bank. The complainant paid a sum of Rs.25 lakhs as loan to the accused on 20.1.2011. Thereafter, the accused issued cheque for a sum of Rs.5,00,000/- with a request to the complainant to present the said cheque during the 2nd week of May 2011.
It is further alleged in the complaint that the accused sold the property under agreement of sale in favour of one D.Bhaskar and Smt.B.Saroja vide registered sale deed dt.10.3.2011 without the knowledge of the complainant. Then the complainant demanded the 4 Crl.A.27/2016 accused for repayment of loan amount, for which the accused two cheques towards balance amount of Rs.20,00,000/- i.e., cheque bearing No.177018 dt.15.6.2011 for Rs.10,00,000/ and another cheque bearing No.177019 for Rs.10,00,000/- dt.15.6.2011.
When the complainant presented cheque bearing No.030822 issued by the accused for Rs.5,00,000/-, it came to be dishonoured for want of sufficient funds in the account of the accused on 12.05.2011. When the complainant approached the accused and informed him regarding dishonour of cheques the accused informed the complainant that he may present the three cheques on 15.6.2011 for encashment. Accordingly, the complainant presented all the three cheques on 15.6.2011. The cheque for Rs.5,00,000/- returned with an endorsement dt.17.7.2011 for the reason that the "payment stopped by drawer" and the other two cheques have returned with an endorsement "funds insufficient" in the account of the accused.
Thereafter, the complainant after complying with the mandatory requirements as contemplated under Sec.138 of Negotiable Instruments Act, has filed the complaint. Learned Magistrate took cognizance of the offence and secured presence of 5 Crl.A.27/2016 accused, who denied to plead guilty. The trial court after recording plea of the accused, proceeded with enquiry. The trial Court finally on hearing arguments of both sides, proceeded to convict the accused for the offence punishable U/Sec.138 of Negotiable Instruments Act and sentenced him to pay a fine of Rs.50,00,000/- and in default of payment of fine amount, the accused shall undergo S.I. for six months by virtue of judgment dt.15.12.2015.
It is this judgment which is now challenge by the appellant on the following grounds:-
The impugned judgment of conviction and sentence is opposed to the settled principles of law, facts and probabilities of the case. The impugned judgment is perverse and contrary to the facts and circumstances of the case. The learned Magistrate erred in appreciating the oral and documentary evidence in proper perspective. The learned Magistrate erred in not noticing the fact that the complainant had not produced any documentary evidence to show that he had advanced Rs.25 lakhs as hand loan amount. The learned Magistrate erred in not holding that the complainant got executed an agreement of sale at the time of advancing the amount of Rs.20 lakhs for the purpose of security and also collected
6 Crl.A.27/2016 cheques in question as security. The learned Magistrate failed to note that the complainant had not produced any documents to show that he paid Rs.20 lakhs and Rs.25 lakhs as loan to the accused. The learned Magistrate erred in believing the oral version of the complainant and it has resulted in miscarriage of justice. The learned Magistrate erred in not holding that there was no any legally recoverable debt or liability due towards the complainant and there was no existence of loan liability.
The learned Magistrate erred in not holding that the complainant misused the cheques which were given as security along with the agreement of sale while advancing loan amount of Rs.20,00,000/- to the accused. The learned Magistrate erred in not properly appreciating the defence set up by the accused. The learned Magistrate erroneously relied upon the oral evidence of complainant without attaching any importance to the defence set up by the accused.
The learned Magistrate erred in not noticing the fact that the if really, the complainant was to pay balance sale consideration amount of Rs.30,00,000/- as per the agreement of sale, the complainant could not have advanced Rs. 25,00,000/- as loan 7 Crl.A.27/2016 without obtaining any acknowledgement of receipt from the accused. the learned Magistrate erred in not noticing the fact that if really there was no such agreement of sale, which has taken place in the year 2008, no prudent man would advance loan of Rs.20 lakhs and another sum of Rs.25 lakhs without obtaining any acknowledgement or document and without adjusting the said amount the towards balance consideration amount if at all such an agreement of sale has taken place.
The learned Magistrate erred in not noticing the fact that though the private complaint was filed on 11.8.2011, the suit for specific performance of contract came to be filed in the year 2012 only to strengthen his case in the private complaint. The learned Magistrate erred in noticing the fact that there was only one transaction between the complainant and the accused for loan amount of Rs.20 lakhs and the complainant had taken cheques in question as well as the agreement of sale only as security for the said loan transaction. The learned Magistrate erred in not noticing the fact that the complainant by creating false story of loan transaction of Rs.25 lakhs, got misused the cheques in question. The learned Magistrate erred in not noticing the fact that the 8 Crl.A.27/2016 accused had already repaid the loan amount of Rs.20 lakhs to the complainant on 22.9.2010 itself, but the complainant refused to return the agreement of sale and cheques in question for the purpose of charging exorbitant interest on the loan amount.
The learned Magistrate failed to notice that the accused had already sold his property on 10.3.2011 itself. The learned Magistrate erred in not attaching any importance to the defence set up by the accused and it has resulted in miscarriage of justice. Hence, prayed to set aside the impugned judgment of conviction and sentence and to acquit the accused for the offence punishable under Sec. 138 Negotiable Instruments Act by allowing this appeal.
4. After filing of this appeal, notice duly served on the respondent who made his appearance through a counsel. The trial Court records are secured.
5. Heard arguments of learned Counsel for appellant and learned Counsel for Respondent. The learned Counsel for appellant filed memo with certain copies of documents and citations.
6. Perused the records.
9 Crl.A.27/2016
7. 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 impugned judgment of conviction and sentence is opposed to the settled principles, facts and probabilities of the case?
2) Whether the learned Magistrate erred in not properly appreciating the oral evidence available on record in proper perspective?
3) Whether the learned Magistrate erred in not attaching any importance to the defense set up by the appellant/accused?
4) Are there any grounds to interfere with the order of conviction and sentence?
5) What order?
8. My findings on the above points are as follows:
Point No.1 to 4: In the Affirmative Point No.5 : As per final Order for the following:-
REASONS
9. Point No.1 to 4:- All these points are taken together for discussion for the sake of convenience and to avoid repetition 10 Crl.A.27/2016 of facts. I have carefully gone through the contents of the appeal memo, impugned judgment of conviction as well as the trial Court records.
10. It is the specific case of complainant before the court below that the accused having borrowed hand loan of Rs.25,00,000/- to clear the mortgage amount with the bank, issued three cheques i.e., one cheque dt.31.1.2011 for a sum of Rs.5 lakhs and two cheques dt.15.6.2011 for Rs.10 lakhs each towards repayment of said hand loan. When the said cheques were presented for encashment, two came to be returned with endorsement as "funds insufficient" and one cheque returned with an endorsement as "payment stopped by the drawer". Then the complainant got issued legal notice to the accused, who neither replied nor repaid the cheques amount. As such the complainant has initiated legal action by filing complaint against the accused for offence punishable under Sec. 138 of Negotiable Instruments Act.
11. On the other hand, it is defence set up by the accused that the cheques in question as well as an agreement of sale were issued only as security towards complainant at the time of borrowing an amount of Rs.20,00,000/-. Though he repaid said amount by way 11 Crl.A.27/2016 of cheques, the complainant refused to return the cheques as well as agreement of sale for claiming exorbitant interest and in turn he had misused those cheques and filed this false complaint.
12. It is also the case of the accused that he never borrowed any hand loan of Rs.25,00,000/- from the complainant nor issued those cheques in question towards repayment of the said amount. As such prayed to set aside the impugned judgment of conviction and to acquit accused by allowing this appeal.
13. In the light of the rival contentions of both the parties, I have carefully gone through the entire materials placed on record. Obviously, burden is on the complainant to prove that cheques in question were issued towards repayment of hand loan of Rs.25,00,000/-.
14. In this regard, the complainant examined himself as PW1, who in his evidence has reiterated the averments of complaint and got marked cheques in question as per Ex.P.1 to 3, Bank endorsements as per Ex.P.4 to 7, legal notice, postal acknowledgement, courier receipt and complaint are got marked as per Ex.P.8 to 12. Further, two RPAD receipts, corrigendum to legal 12 Crl.A.27/2016 notice, postal receipt, copy of letter, reply given by the postal authority are got marked as per Ex.P.13 to 18.
15. In the cross-examination, he states that if the accused did not make endorsement on the agreement of sale for having received Rs.20,00,000/-, he would not have advanced said amount to him. After his retirement, neither himself nor his wife had not advanced any amount to others. He admits that he got executed an agreement of sale from accused in respect of his property. He advanced initially sum of Rs.20 lakhs in the first week of February 2010 to accused and at that time, except himself and his wife and accused , no others were present. He states that he did not get any endorsement on the agreement for having advanced said initial loan of Rs.20,00,000/-. He states that he had not obtained any receipt, nor any document from accused for having advanced second loan of Rs.25,00,000/- to accused.
16. He advanced said loan amount to accused only on trust. When he came to know about the sale deed executed by the accused in respect of his property in favour of one Bhaskar in the month of March 2011, he did not issue any legal notice to him. But he filed suit for specific performance of contract. He states that the 13 Crl.A.27/2016 accused had returned back the earlier loan amount of Rs.20 lakhs by way of cheques. The accused failed to return 2nd loan of Rs.25 lakhs to him.
17. He denied the suggestion that he never advanced any loan amount of Rs.25,00,000/- to accused. He denied the suggestion that though the accused had already returned the said loan amount of Rs.20 lakhs by way of cheques, he intentionally refused to return agreement of sale and cheques in question, which were taken as security at the time of advancing loan of Rs.20 lakhs. He denied all other other suggestions.
18. I have carefully appreciated and evaluated the evidence of PW1 coupled with contents of Ex.P.1 to 18. As per the case of the complainant, there were in three transactions between himself and accused. Firstly there was an agreement of sale entered into between the complainant and accused in the year 2008 in repect of the property of accused for an amount of Rs.50 lakhs. As per the complainant, though he paid advance amount of Rs.20 lakhs towards purchase of the site property as per the agreement of sale, accused did not come forward to execute the sale deed in respect of said property by receiving balance consideration amount of Rs.30 14 Crl.A.27/2016 lakhs. Secondly, though the accused again borrowed a sum of Rs.20 lakhs as hand loan from him, he has already repaid said amount by way of cheques. Thirdly after repayment of hand loan amount of Rs.20 lakhs, the accused again borrowed Rs.25 lakhs from complainant, which he failed to repay the same and in turn, he issued Ex.P.1 to 3 cheques towards payment of said loan amount.
19. In this back ground of the case, I have carefully appreciated the entire materials available on record. Herein this case, it is the defense set up by accused that only once he had borrowed loan amount of Rs.20 lakhs by giving the cheques in question as well as the agreement of sale as security. Though he repaid said loan amount by way cheque, the complainant by demanding more interest, has refused to return those documents and in turn, filed false this false complaint by misusing those cheques which were given as security.
20. Having carefully scrutinized the records, I am of the view that if really any such agreement of sale has taken place in the year 2008 itself for an amount of Rs.50,00,000/- and accused failed to complete the sale transaction by receiving advance amount of Rs.20,00,000/- in spite of issuing legal notice, the complainant would 15 Crl.A.27/2016 not have again advanced hand loan of Rs.25 lakhs without insisting any documents.
21. Furthermore, if at all such an amount of Rs.25 lakhs is paid as alleged, there is no explanation offered by the complainant as to why he did not insist the accused to adjust said amount of Rs.25,00,000/- towards balance consideration and to get the sale deed executed by paying remaining consideration amount of Rs.5,00,000/-.
22. All these facts create doubt as to the case of the complainant with regard to advancing loan of Rs.25,00,000/- to accused. It is highly improbable to believe that in spite of accused having refused to execute sale deed by receiving balance consideration, the complainant dared to lend such huge hand loan amount to him.
23. Further, the complainant has come up with a contention that though he got agreement of sale executed from accused, he had already filed a suit for specific performance of contract and as such he did not insist the accused to execute any security for having borrowed hand loan of Rs.25,00,000/-. But this contention of complainant is not probable and believable one. Because, the 16 Crl.A.27/2016 person who paid Rs.20,00,000/- as advance towards purchase of a property from the accused by virtue of agreement of sale, would not have kept quiet, without insisting for execution of any security for advancing such huge loan amount of Rs.25,00,000/-. So, this circumstance also creates doubt as to the alleged loan transaction between the complainant and accused. Obviously, no prudent man would lend hand loan of Rs.25,00,000/- without insisting for any document or security or receipt for having paid such huge loan amount. Having regard to all these facts, I am of the view that the learned magistrate grossly erred in not properly appreciated the oral and documentary evidence available on record in proper perspective.
24. Even otherwise, though the complainant issued legal notice in the year 2009 itself calling upon the accused to execute sale deed by receiving balance consideration amount of Rs.30,00,000/-, he did not think of taking any document or receipt from accused while advancing alleged hand loan of Rs.25,00,000/-. This circumstance appears to be unreasonable.
25. Moreover, during the course of arguments, the learned Counsel for appellant produced copy of legal notice issued by 17 Crl.A.27/2016 complainant dt.5.6.09 wherein the accused was called upon to execute sale deed by handing over the original documents on or before 10.6.2009 by receiving balance sale consideration amount or else to return Rs.40,00,000/- so as to terminate the agreement of sale. The issuance of said legal notice dt.5.6.09 itself indicates that the accused failed to keep up his promise to execute sale deed by receiving balance consideration amount of Rs.30,00,000/- in respect of his property. Such beginning the situation, when the complainant issued said legal notice on 5.6.09 itself, he would have filed a suit for specific performance of contract against the accused instead of paying loan amount of Rs.25 lakhs without taking any security. This circumstance also creates doubt as to the genuineness of case set up by complainant. As such, looking to all these facts, it can be said that the court below erred in not attaching any importance to the defence set up by accused.
26. However, this legal notice has not been confronted to PW1 in the cross-examination. Therefore, this document cannot be straight away relied upon by this court without giving an opportunity to complainant to offer his explanation in this regard.
18 Crl.A.27/2016
27. Furthermore, the Learned Counsel for appellant has also produced Xerox copies of cheques i.e., Ex.P.2 and 3, which do not bear the date. Though the name, signature and amount are mentioned in the Xerox copy of cheques, the date is not shown in the cheques. So, production of Xerox copies of documents i.e., Ex.P.2 and 3 creates doubt as to the issuance of Ex.P.2 and 3 towards repayment of loan amount of Rs.20 lakhs as on 15.06.2011. Further, if Ex.P2 and 3 were given in the hands of PW1 on 15.06.2011 itself, the accused would not have come in possession of copies of those undated cheques. However, this document is also not confronted to PW1 in the cross-examination.
28. Further, the appellant also produced copy of plaint in O.S.3987/2012 filed by complainant against accused for specific performance of contract. The learned Counsel for appellant has also produced copy of his statement of accused recorded by police on 28.10.2011, as well as copy of General Power of Attorney dt.17.2.2010 executed by the accused in favour of K.N.Govindaraju. But all these documents cannot be straight away relied upon at this stage so as to doubt the case of the complainant. Because, law is well settled that a party to a proceedings cannot be put to surprise 19 Crl.A.27/2016 without giving him an opportunity to explain about the said documents which were not produced during the course of trial. Therefore, this court straight away cannot rely upon the production of copy of legal notice, copy of undated cheques, copy of plaint, statement of accused recorded by the police, copy of GPA, without confronting those documents to PW1 during the course of cross- examination.
29. During the course of arguments, Learned Counsel for Respondent/complainant submitted that since those documents were not confronted to complainant before the court below, those documents cannot be relied upon at this stage for any purpose. As such, I do find some force in the said submission of learned Counsel for Respondent/complainant, for the reason that a party cannot be put to surprise by putting additional documents before the appellate court without confronting the same during the course of trial.
30. Anyhow, the production of documents as per memo dt.12.4.2017 goes to show that though the complainant issued legal notice calling upon the accused to complete the alienation by receiving the balance consideration amount in the year 2009 itself, 20 Crl.A.27/2016 he has not taken any steps for filing suit for specific performance till the year 2012 for the reasons best known to him.
31. Further, there is no explanation by the complainant as to how the accused came in possession of zerox copies of undated cheques. Further, the statement of accused before the police on 28.10.2011 indicates that the agreement of sale as well as cheques which were given as security towards earlier loan transaction, are not returned by the complainant.
32. Therefore, having regard to all these facts and circumstances, I am of the considered view that the documents now produced before this court as per memo dt.12.4.2017 need to have been confronted to PW1 during the course of cross-examination so as to offer his explanation. Therefore, in view of the production of additional documents which are new to the case of the complainant, the matter needs to be remanded back to the court below by setting aside the impugned judgment of conviction and sentence, by affording an opportunity to the appellant/accused to confront these documents to PW1 by re-opening the cross-examination of PW1/complainant and to lead evidence if any, so as to enable the court below to give findings afresh relying on the additional 21 Crl.A.27/2016 documents as well as oral and documentary evidence available on record to arrive at just and fair conclusion.
33. If the matter is remitted back with a direction to the court below to consider the documents now produced before the appellate court and to dispose off the matter afresh on merits, it would suffice the ends of justice. Further, under the circumstances, learned Magistrate shall afford an opportunity to both the parties to lead additional evidence if any, in support of their contentions, so as to dispose of the matter once and for all on merits.
34. During the course of arguments, learned Counsel for appellant has referred several authorities, produced along with memo. I have carefully gone through the said authorities:-
i) Hon'ble Delhi High Court in an authority reported in 2014(1)DCR547 in the case of S.K.Jain Vs. Vijay Kalra observed as under:-
"Negotiable Instruments Act, 1881 - Section 138 and 139
- Standard of proof - Held - accused in a trial under section 138 of N.I.Act can either show that consideration and debt did not exist or that under the particular circumstances of the 22 Crl.A.27/2016 case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt exist - To rebute the statutory presumption an accused is not expected to prove his defence beyond reasonable doubt. "
On perusal of the above said authority, it clearly indicates that the presumption under Sec.139 of Negotiable Instruments Act is a rebuttable presumption. To rebut the said statutory presumption, the accused cannot be expected to prove his defence beyond reasonable doubt. It is suffice if he shows that the defence set up by him is probable in the attending circumstances. So, the ratio observed in the above said authority is aptly applicable to the case on hand. Herein this case also though the complainant got executed an agreement of sale by paying part consideration amount of Rs.20 lakhs, he has not obtained any receipt for having paid the subsequent loan amount of Rs.25 lakhs for the reasons best known to him. No prudent man would advance such a huge amount of Rs.25 lakhs without taking 23 Crl.A.27/2016 any documents such as promissory note and consideration receipt, for having advanced such huge amount. Therefore, the defence of the accused, that the cheques in question as well as the agreement of sale were given as security in the hand of complainant while availing loan amount of Rs.20 lakhs, appears to be probable and reasonable one. As such the ratio observed in the above said authority is aptly applicable to the case on hand.
ii) A similar view was taken by Hon'ble Bombay High Court in an authority reported in 2014(1) DCR 184 in the case of Shirish Vasant Borkar Vs. Shri Vijayakumar.K. Pillienkar Fadke and another, wherein it is observed as under:-
"Negotiable Instruments Act, 1991 - Section 138, 139 and 118(a) - Criminal Procedure Code, 1973 - Sec.378 - Rebuttal by accused - Scope - Held - Standard of proof by accused to rebut presumption under Sec.139 and 118(a) of N.I.Act is preponderance of probabilities."
24 Crl.A.27/2016 Said ratio observed in the above said authority is also applicable to the case on hand.
iii) Further, Hon'ble Bombay High Court in an authority reported in 2015(3) DCR 782 in the case of Mr. M.Jayaram Shetty Vs. Mr. Vijay V.Haria, wherein it is observed as under:-
"Since complainant had not produced any documentary evidence to prove alleged loan transaction or to prove that he had capacity to advance such loan, so findings given by the court is probable and the same is neither illegal or perverse."
Herein this case, the complainant had not produced any documentary evidence to prove that he had advanced such huge loan amount of Rs.25 lakhs to the accused irrespective of the fact that the accused failed to perform his part of the contract by executing registered sale deed in respect of his property. So, the ratio observed is also applicable to the case on hand.
25 Crl.A.27/2016
iv) Further, Hon'ble Kolkata High Court in an authority reported in 2013(2) DCR 52 in the case of Rangappa Vs. Sri Mohan, wherein it is observed as under:-
"Mere issuance of cheque by accused only does not ipso- facto prove that there is a debt or liability of accused. It creates a presumption which is rebuttable."
The ratio observed in the above said authority also applies to the case on hand, for the reason that though the cheques in question i.e., Ex.P.1 to 3 have been issued in favour of complainant, it does not ipso-facto prove that there is a debt or liability due towards complainant. Further more, as observed in the above authority, the appellant /accused has produced copies of Ex.P.2 and 3 and they are undated. So, possibility of accused presenting the same by putting date on those cheques which were given as security towards earlier loan transaction of Rs.20 lakhs, cannot be ruled out. So, the ratio observed in the above said authority also applies to the case on hand.
v) Further, Hon'ble Andhra Pradesh High Court in an authority reported in 2013(1) DCR 258 in the case of 26 Crl.A.27/2016 G.Ashok Kumar Goud Vs. Smt. P.Anjali Bai and another, observed as under:-
"Standard of proof so as to prove a defence on the part of an accused is "pre-ponderance of probabilities". No cogent and reasonable evidence is required for."
On perusal of the above said authority, it can be said that the ratio observed above also applies to the case on hand. Because, herein this case also, by producing the Xerox copies of undated cheques as well as legal notice issued by complainant to accused, would appear that the cheques in question might have been issued as security for availing earlier loan amount of Rs.20 lakhs. So, these facts indicate that the defence set up by the accused is probable one.
vi) Further, Hon'ble Delhi High Court in an authority reported in 2013(1) DCR 417 in the case of Kulvinder Singh Vs. Kafeel Ahmed, wherein it is observed as under:-
"Under Sec.138 of Negotiable Instruments Act, if there is a slightest doubt about the commission of an offence, then the benefit has to accrue to accused."
27 Crl.A.27/2016 Herein this case, in view of the production of Xerox copies of undated cheques creates doubt as to issuance of Ex.P.2 and 3 towards repayment of loan amount.
vii) Further, by Hon'ble Madras High Court in an authority reported in 2011(2) DCR 696 in the case of R.B.Ramakrishnan Vs. A.Meena, wherein it is observed as under:-
"Mere failure to send reply notice will not take away the right of the party to contest the case."
Herein this case also the accused has not replied the legal notice, but it does not become hurdle for the accused to set up a defence which is probable in the facts and circumstances of the case. Therefore, failure to send reply notice in the case on hand would not take away the right of accused to defend his case.
35. Having carefully appreciated the entire materials placed on record and in the light of the observations made in the above said authorities, I am of considered view that the defence set up by the accused, that the cheques in question as well as agreement of sale 28 Crl.A.27/2016 were given as security while availing loan amount of Rs.20 lakhs in the year 2008, appears to be probable and believable one.
36. Further, it has come on record that soon after the alleged execution of agreement of sale dt.10.12.2008, the complainant issued a legal notice on 5.6.2009 calling upon the accused to execute the sale deed or to return double the advance amount. Though the such legal notice has been issued in the year 2009 itself, the complainant has not offered any explanation as to why he did not file any suit for specific performance of contract till the year 2012.
37. It is only after filing of complaint against accused for offence punishable under Sec. 138 Negotiable Instruments Act, the complainant filed suit in O.S.3987/2012 against the accused and the purchasers for specific performance of contract. If at all the appellant /accused failed to reply the legal notice and did not come forward to execute the sale deed, there was no hurdle for him to file a suit for specific performance of contract in the year 2009 itself. Surprisingly, the complainant alleged to have advanced hand loan of Rs.20 lakhs and Rs.25 lakhs to the accused without taking any documents or consideration receipt, irrespective of the fact the 29 Crl.A.27/2016 accused failed to keep up his promise to perform his part of contract.. These circumstances have not been properly appreciated by the court below while evaluating the evidence available on record.
38. Further, the accused has not confronted, copy of legal notice dt.5.6.2009, as well as the Xerox copies of undated cheques, copy of statement recorded by the police on 28.10.2011 and the GPA executed in favour of one K.N.Govindaraju, to PW1 at the time of cross-examination. Therefore, these material documents were withheld by the appellant/accused without confronting the same to the Respondent/complainant during the course of evidence. Such being the fact without confronting these documents and without affording an opportunity to the Respondent/complainant with regard to legal notice, Xerox copies of undated cheques Ex.P.2 and 3, and copy of statement before the police, this court straight away cannot rely on these documents to disbelieve the case of the complainant.
39. Such being the fact, the circumstances involved in thie case, do warrant this court to set aside the order of conviction and sentence and to remit back the matter to the court below by giving an opportunity to the appellant/accused to confront these documents 30 Crl.A.27/2016 by re-opening the evidence of PW1 for the purpose of further cross- examination on these documents. So that, the Respondent/complainant would be able to explain the circumstances with regard to the documents now produced before this court as per memo dt.12.4.2017.
40. With these observations, the matter needs to be remitted back to the court below by setting aside the impugned judgment of conviction and sentence and to dispose of the matter afresh in accordance with law by affording reasonable opportunities to both the parties to lead additional evidence, if any. Accordingly, I answer point No.1 to 4 in affirmatively.
41. Point No.5: In view of my findings on point No.1 to 4, I proceed to pass the following:
ORDER The appeal filed by appellant U/sec. 374(3) of Code of Criminal Procedure is hereby allowed.
The impugned judgment of conviction and sentence passed by the XIII ACMM, Bengaluru, in CC No.37137/2011 dt.15.12.2015 is hereby set aside.
Consequently, the matter is remitted back to the court below with a direction to the give an opportunity to 31 Crl.A.27/2016 the appellant/accused to confront the documents now produced by the appellant/accused along with memo dt.12.4.2017, by re-opening the evidence of PW1 for the purpose of further cross-examination on these documents and further, to afford reasonable opportunities to both the parties to lead additional evidence, if any, and then to dispose off the matter afresh in accordance with law, without being influenced by the observations made this court in the above judgment.
Both parties shall appear before court below positively on 04.11.2017 Send a copy of this judgment to the lower Court along with LCR immediately.
(Dictated to the Judgment Writer, transcribed and typed by him, corrected and then pronounced by me in the open court on this the 21st day of September, 2017) (S.K. VANTIGODI) LX Addl.City Civil & Sessions Judge, Bengaluru.