Bangalore District Court
Manjesh Kumar vs Ravi G.S on 12 October, 2022
1
Crl.A.No.684/2021
KABC010394732021
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-56)
:Present :
SRI SHRIRAM NARAYAN HEGDE,
B.A., LL.M.,
LV Addl. City Civil & Sessions Judge,
Bengaluru.
Crl.A.No.684/2021
DATE: THE 12th DAY OF OCTOBER, 2022
APPELLANT MANJESH KUMAR
S/O REVANNA
AGED ABOUT 39 YEARS,
RESIDING AT
MANJUNATHA NILAYA
NO.309, 1ST CROSS,
KRISHNEGOWDA BADAVANE
T.DASARAHALLI,
BENGALURU -5650 057.
(Rep. by Sri.Vijayakumaraswamy, Adv)
Versus
RESPONDENT RAVI G.S.
S/O G.P.S. MURTHY
AGED ABOUT 39 YEARS,
RESIDING AT NO.107,
SRI SIDDARAMESHWARA
2
Crl.A.No.684/2021
VARADHARAJA SWAMY LAYOUT,
PHASE 2, 1ST MAIN, SINGAPURA,
VIDYAANYAPURA (P), BENGALURU - 560
097.
(Rep. By Sri.B.N.P.., Adv)
JUDGMENT
This appeal is preferred by the appellant / accused under Section 374 (3) of Cr.P.C. challenging the judgment of conviction dated 11.08.2021 passed by the XVIII ACMM, Bengaluru in C.C..No.4149/2018.
2. By the aforesaid judgment, the trial court has convicted this appellant for an offence punishable under Section 138 of N.I. Act.
3. The brief facts which are necessary for the appreciation of present appeal are that, the accused and the complainant are well known persons from past few years and being friends. In the month of October 2016, the accused approached the complainant and requested for hand loan of Rs.7 lakhs. By considering urgent necessities of the accused, the complainant paid hand loan of Rs.7 lakhs. But the accused has not repaid that amount and when he insisted for repayment he issued cheque bearing 3 Crl.A.No.684/2021 No.188096 dated 28.06.2017 for sum of Rs. 7 lakhs. When the legal notice was issued to the accused he has sent reply. Again the accused approached the complainant and asked for some more time for payment of that amount. He again issued cheque bearing No.188097 dated 28.11.2017 for sum of Rs. 7 lakhs and when the said cheque was presented to the bank for encashment it was dishonored for the reason 'Funds Insufficient' and even after service of demand notice, the accused has not paid the amount and hence, without any alternative the complainant filed aforesaid complaint.
4. The trial court took cognizance of the offence against the accused and after recording sworn statement of the complainant issued process to the accused.
5. The accused appeared before the trial court and was released on bail. The plea of the accused was also recorded and the case of the accused was one of total denial and claimed for trial.
6. In order to substantiate the charges levelled against the accused, the complainant got himself examined as PW 1 and got marked 7 documents as Ex.P1 to P7. The statement of the accused was recorded as contemplated under Section 4 Crl.A.No.684/2021 313 of Cr.P.C. The accused denied the incriminating circumstances, and chose to lead defence evidence. Then the case was posted for defence evidence.
7. In order to prove his defence, the accused himself is examined as DW1 and got marked 3 documents as Ex.D1 to D3. Then the case was posted for arguments.
8. The trial court heard the augments of both sides and after considering oral and documentary evidence came to the conclusion that the complainant has proved the guilt of the accused and consequently convicted the accused for the aforesaid offence.
9. Being aggrieved by the said order of conviction the accused / appellant has come up before this court on the following grounds.
(a) The trial court has committed an error in law by taking cognizance of the offence and as such the conviction is bad in law.
(b) The trial court has erred in law in passing erroneous judgment which is one sided on the basis of absolutely inadmissible evidence.
(c) The trial court has grossly erred in law in not observing cross examination of PW 1.
(d) As per Section 269 of IT Act, any person lent a 5 Crl.A.No.684/2021 loan more than Rs.20,000/- must pay same through cheque or Demand Draft.
(e) The complainant has not proved existence of legally enforceable debt.
With these, the appellant / accused prays for allowing the appeal, set aside the order of conviction and to acquit him for the alleged offences.
10. The trial court records have been secured and case was posted for arguments.
11. Heard the arguments and perused the citation relied upon by the learned counsel for the appellant.
12. Now the points that arise for my consideration are as follows.
1. Whether the trial court has committed an error by holding that the complainant / respondent has proved the guilt of the accused for the offence punishable under section 138 of NI Act?
2. Whether the judgment of the trial court suffers from any illegality or irregularity and as such calls for interference by this court in this appeal?
3. What order?
13. On the basis of the materials available on record, my findings on the aforesaid points are as under.
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Crl.A.No.684/2021
Point No.1: In the Negative.
Point No.2 : In the Negative.
Point No.3: As per final order, for the following.
REASONS
14. POINT NO.1 & 2: These points are taken up
together for consideration as the findings on one point has direct bearing on the other point.
15. In order to prove the charges levelled against this accused, the complainant relying upon his evidence and documents at Ex.P1 to P7.
16. In his oral evidence, the PW 1 has reiterated and reaffirmed his contention taken in the complaint. He is cross examined at length by the learned counsel for the accused. It is suggested to this witness that this accused had issued this cheque to Munikrishna who in turn got filed this false case. This suggestion is denied. This witness has not admitted that he has not produced the first cheque which was not honored when it was presented to the bank. Several questions were put to him relating to the financial 7 Crl.A.No.684/2021 capacity. This witness has stated that in the ye 2016 his yearly income was Rs.15 lakhs. He has specifically stated that he is having financial capacity to lent loan of Rs. 7 lakhs. According to him he had drawn Rs.4,75,000/- from the bank account at the time of lending loan of Rs.7 lakhs. Much contrary is not elicited in his cross examination to disbelieve his evidence.
17. Apart from his oral evidence, the complainant has produced documents. Ex.P1 is the cheque bearing No.188097 dated 28.11.2017 for Rs.7 lakhs. On going through this cheque it reveals that this cheque was issued for payment of Rs.7 lakhs. At the time of his evidence, the accused has admitted the cheque as well as signature. When once the cheque and signature are admitted by that of the accused the court has to presume that this cheque was issued for repayment of legally recoverable debt. There is presumption u/S. 139 of NI Act. This presumption is not an absolute presumption. It is rebuttable presumption. The accused can rebut this presumption by producing cogent, oral and documentary evidence. The accused need not to 8 Crl.A.No.684/2021 prove the defence beyond reasonable doubt. But the defence of the accused should be probable. If the accused is able to show that his defence is probable, then the burden shifts on the complainant to prove the existence of legally recoverable debt.
18. In this case the defence of the accused is that Ex.P1 cheque was issued to Munikrishna and it is misplaced by the complainant. IN his chief examination affidavit he ha stated that he had given two cheques bearing No.188096 and 188097 about four years back to one Munikrishna S/o Venkatesh for arrangement of hand loan. But the said Munikrishna did not arrange the hand loan and not returned the said cheque. Now that cheque is misused by this complainant. According to him the said Munikrishna has set up this complainant to file this false case. The first notice issued by the complainant is properly replied and second notice is not served on him. This defence is proved by the accused.
19. In his cross examination, the accused has admitted that he had not filed any complaint against Munikrishna or 9 Crl.A.No.684/2021 this complainant relating to misuse of the cheque. He has admitted that Ex.P7 is the bank statement relating to account maintained by the complainant. He has produced reply notice which is marked as Ex.D1. In his reply notice, nothing is stated about Ex.P1 cheque. He has stated that the cheque bearing No.188096 was given to Munikrishna about four years back as a security to the loan. No where in the reply notice, the accused has stated that Ex.p1 cheque was also given to Munikrishna. Ex.P2 is postal receipt. Ex.P3 is the bank pass book cover. These documents are not sufficient to rebut the presumption available u/S. 139 of NI Act. Nobody can take such defence. If really this accused had handed over two cheques to Munikrishna he had to file complaint before the police or before the court, when it is misused by the said person along with complainant. Even in the Ex.D1 reply notice, this accused has not stated anything relating to Ex.P1 cheque. Such being the case, the defence of the accused is not probable.
20. One more contention of this accused is that the complainant had no financial capacity to pay such huge 10 Crl.A.No.684/2021 amount. But this Ex.P7 clearly reveals that this complainant had more than Rs.10 lakhs in his bank account from August 2016 to September 2016. Even in October 2016 also he had sufficient amount. He ha also produced Income Tax Returns acknowledgement. Considering this fact in my opinion, it is not possible to say that the complainant ha no financial capacity. Since the accused has failed to rebut the presumption without any alternative it has to be held that the complainant has proved the alleged offence against the accused. Hence, the arguments of the learned counsel for the accused is not acceptable. On the other hand the arguments of the learned counsel for the respondent is acceptable one.
21. In support of his arguments, the learned counsel for the respondent has relied upon the following judgments.
1. (2022) 1 SCC 742 (TRIYAMBAK S. HEGDE VS. SRIPAD).
2. (2021) 5 SCC 283 (KALAMANI TEX AND ANOTHE VS. P. BALASUBRAMANIAN).
3. (2010) 11 SCC 441 (RANGAPPA VS. MOHAN). 11
Crl.A.No.684/2021
4. 2020 (1) AKR 230 (USMAN GANI VS. M/S SHRIRAM TRANSPORT FINANCE COMPANY LTD.).
5. 2020 (1) AKR 223 (RAKESH VS. SUJATHA)
6. 2020 (1) AKR 186 (V.R.SHRESTI VS. BHASKAR P.)
22. I have gone through the aforesaid judgments. The principles laid down in the aforesaid judgments are applicable to the case in hand. But without filling an appeal this respondent cannot claim double the cheque amount as compensation. Hence, looking into any angle, it reveals that the case of the appellant is not acceptable one.
23. I have gone through the judgment passed by the trial court. The trial court has scrutinized the oral and documentary evidence on record and has come to the conclusion that the complainant has successfully proved the allegations made in the complaint. The trial court has rightly appreciated the evidence on record and has rightly convicted the accused for the offence punishable under Section 138 of N.I. Act. Even after re-appreciation of the entire evidence on record, I do not find any illegality or irregularity committed by the trial court in convicting this 12 Crl.A.No.684/2021 appellant / accused. Therefore, the appeal sans merit and liable to be dismissed. For the aforesaid reasons, point No.1 and 2 are answered in the NEGATIVE.
24. POINT NO.3: In view of the findings on point No.1 & 2, above the following order is passed:
ORDER Appeal filed by the appellant / accused under Section 374 (3) of Cr.P.C. is hereby dismissed.
The judgment dated 11.8.2021 passed by learned XVIII ACMM, Bengaluru City in C.C.No.4149/2018 is hereby confirmed.
Office to send back the entire records along with copy of this judgment to the trial Court forthwith. (Dictated to the Judgment Writer, transcribed by him corrected, singed and then pronounced by me in the open Court on this the 12th day of OCTOBER 2022).
(SHRIRAM NARAYAN HEGDE), LV Addl. City Civil & Sessions Judge, (CCH-56) Bangalore City.
13Crl.A.No.684/2021 Judgment passed and pronounced in the Open Court. The operative portion of the order reads thus.
ORDER Appeal filed by the appellant / accused under Section 374 (3) of Cr.P.C. is hereby dismissed.
The judgment dated 11.8.2021 passed by learned XVIII ACMM, Bengaluru City in C.C.No.4149/2018 is hereby confirmed.
Office to send back the entire records along with copy of this judgment to the trial Court forthwith.
LV Addl. City Civil & Sessions Judge,