Bangalore District Court
B.H.Lokesh vs B.M.Chandregowda on 4 January, 2016
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY.
(CCH-67)
DATED THIS THE 4th DAY OF January 2016
PRESENT
SRI.VIJAYAN.A., B.A.(LAW), LL.M.
LXVI Addl.City Civil & Sessions Judge
Crl.A.No.1133/2014
APPELLANT B.H.Lokesh,
S/o B.M.Hanumantharayappa,
Aged 45 years,
No.301 A, Site No.217,
Ranka Enclave Apartments,
Sadashivanagar,
RMV Extension, Bangalore.80.
(Rept.By Sri.M.VinodKumar, Adv.)
VS.
RESPONDENT B.M.Chandregowda,
s/o Late Muniswamaiah,
Aged 56 years,
No.804, 18th Cross,
5th Block, HMT Layout,
Vidyaranyapura,
Bangalore.
(Rept. By Sri.MR, Adv.)
2 Crl.A.No.1133/2014
JUDGMENT
Appellant has preferred this appeal under Sec.374 of Cr.P.C. being aggrieved by order of conviction passed in CC.No.26471/2007 dated 20.9.2014 by the learned 18th ACMM, Bengaluru.
2. Brief facts of the appellant's case are that:-
The Appellant is the Managing Director of M/s Rathnaroy Enterprises Ltd., approached the respondent to offer his property as surety to facilitate overdraft facility to one Digiana Computers Ltd and during the course of business the accused has committed default in payment and in response to notice from bank accused had arranged for the cash of Rupees 16,30,000/- and in discharge of the said amount appellant issued the cheque. When presented the said cheque dishonored with an endorsement exceeds arrangement. Inspite of issuance of legal notice appellant has failed to pay the amount. Hence, complaint.3 Crl.A.No.1133/2014
3. The learned magistrate was pleased to take cognizance and sworn statement of complainant was recorded and issued summons to the accused. Thereafter, the complainant has examined himself as P.W.1 and got marked Ex.P.1 to P.26 and closed his side of evidence. The statement of accused under Sec. 313 of Cr.P.C. was recorded and accused himself examined as DW1. The trial court after hearing the arguments on both sides passed the impugned judgment dated 20.9.2014 convicting the accused/appellant for the offence punishable under Sec.138 of N.I. Act and sentenced him to pay a fine of Rs.10,25,000/- and in default he shall undergo S.I. for a period of one year.
4. Aggrieved by order of conviction and sentence passed the appellant/accused herein has approached this court for the following among other grounds:- 4 Crl.A.No.1133/2014
a) The order of Trial Court is highly illegal and same suffers from legal infirmities.
b) The Trial Court without considering the lacunas in the case of the complainant and the contradictions passed the impugned judgment.
c) There is no transaction between Rathnaroy enterprises and the respondent. During the course of cross examination the respondent has admitted the same. Even in legal notice, sworn statement, PCR and evidence there is no whisper of any statement that there is nay transaction took place the accused and appellant.
d) It is not the case of respondent that h3e has paid any amount to the Rathnaroy Enterprises hence, there is no transaction and there is no consideration passed the question of the appellant owing money to the respondent does not arise.
e) The documents produced by respondent only shows that he had some transaction with one M/s Digiana Computers and Respondent has paid some amount to the bank on behalf of the M/s Digiana Computers. He has stood as a surety to the overdraft.
f) PW1 being B Com graduate having banking transaction knowledge wouldn't have obtained any 5 Crl.A.No.1133/2014 documents if there was any payment to the company Rathnaroy enterprises.
g) Ex.P13 to 19 are the notices from Bharat Overseas bank showing that there was some loan and transaction between Digiana Computers and the respondent and Bank and no where it reflects of any transaction with Rathnaroy enterprises. The trial court ought not have based conviction on such kind of cases.
h) The accused is not supposed to offer explanation for the transaction held between the respondent and any third parties. The Trial court did not consider the defence taken by the Appellant in proper prospective.
i) There is no legally recoverable debt and liability subsist and the appellant is liable to be acquitted.
Hence, learned advocate for appellant prayed this court to set aside the judgment of conviction and sentence passed and acquit the appellant in the interest of justice and equity.
5. Heard. The learned counsel for Appellant has relied on the following citations:
1. (2014) 2 SCC 236 6 Crl.A.No.1133/2014
2. (2014)2 SCC 240 3. (2015) 1 SCC 99: 2014 SCC Online S.C.No. 899
4. (2013)3 SCC 86
5. (2009)2 SCC 513
6. (2009) 1 SCC 492
7. (2013) 1 SCC 327
6. On the basis of case made out, following points arise for my determination:
1) Whether the impugned order is illegal arbitrary and requires interference by this Court ?
2) What Order?
7. My findings to the above points are:
1) In the Negative
2) As per final Order, for the following:
REASONS
8. POINT No.1: The complainant has filed this case against the accused for the offence punishable under Sec.138 of NI Act and during the course of trial plaintiff side examined witness PW1 and got marked documents ExP1 to P26. Accused himself examined as DW1. Trial court after 7 Crl.A.No.1133/2014 appreciating both oral and documentary evidence convicted the accused for the offence punishable under Sec.138 of NI Act and sentenced accordingly. Being aggrieved by judgment of conviction and sentence passed by learned Trial Judge appellant preferred this appeal on the grounds that order of court below is highly illegally and same suffers from legal infirmity and interference of this court is warranted and order of court below is devoid of equity. The court below without considering lacunae in the case of complainant and the contradictions passed the impugned judgment, which is bad as per the established principles of law. Further urged that the trial court not considered the major issued admittedly there is no transaction between Rathnaray enterprises and the respondents. During the cour4se of cross examination respondent has admitted that there is not transaction between Rathnaroy Enterprises and the respondent besides that even in legal notice, sworn statement and PCR and evidence there is no whisper of any 8 Crl.A.No.1133/2014 statement that there is any transaction between the Rathnaroy Enterprises and the respondent. Further it is not the case of the respondent that he has paid any amount to Rathnaroy Enterprises, therefore when there is no transaction or when there is no consideration passed the question of appellant owing money to the respondent does not arise. The trial court ought to have acquitted the appellant holding that there is no legally recoverable debt and liability. As such the trial court grossly erred in convicting the appellant.
9. Documents produced by respondents only shows that he had some transaction with one M/s Digiana Computers and respondent has paid some amount to bank on behalf of M/s Digiana Computers and he has stood as surety to overdraft of M/s Digiana Computers, however no document speaks that appellant has any transaction with respondent or respondent has paid any amount to appellant. This fact clearly rebut the presumption available 9 Crl.A.No.1133/2014 to respondent and initial burden shifts to the respondent. Hence, judgment of conviction passed by trial court brushing vital aspect is liable to be set aside.
10. PW1 being B Com graduate having banking transaction knowledge wouldn't have obtained any documents if there was any payment to the company Rathnaroy enterprises. Ex.P13 to 19 are the notices from Bharat Overseas bank showing that there was some loan and transaction between Digiana Computers and the respondent and Bank and no where it reflects of any transaction with Rathnaroy enterprises. The trial court ought not have based conviction on such kind of cases. The accused is not supposed to offer explanation for the transaction held between the respondent and any third parties. The Trial court did not consider the defence taken by the Appellant in proper prospective. There is no legally recoverable debt and liability subsist and the appellant is liable to be acquitted.
10 Crl.A.No.1133/2014
11. PW1 BM Chandregowda examined himself as PW1 by producing affidavit in view of examination in chief reiterating all complaint averments and in support of his case he produced and got marked documents Ex.P1 to P26.
12. In his cross examination he deposed that he is an agriculturist by profession , he had taken voluntary retirement from HMT in the year 2004 , he was working in the HMT as accounts Officer. He was having salary of Rs.14,000/- at that time. And he had studied up to B.Com. He was an income tax assessee and he is having knowledge of banking transaction. He do not know who are all directors of Rathnaroy Infotech Pvt.Ltd., earlier his wife Bhagya was also Director in that company. His wife was not employed. She was Director of that company for about 4 to 5 years. Now she is not a Director. Even she was director she was not having any other income. He has not asked his wife what is nature of business done by the company. Again deposed that his wife was not Director of Rathnaroy 11 Crl.A.No.1133/2014 Infotec Pvt.Ltd but she was Director of Rathnaroy Infoces. He has not enquired as to who is looking after financial transaction of that company. Accused No.2 is his brother's son. He was residing in his house. He was Director of Rathnaroy Infotech Pvt. Ltd. He do not remember on what date Directorship of his wife came to an end. Again stated that she has voluntarily left the company. Further deposed that there was no property dispute between himself and father of accused. The address of Company was given as that his house and he clearly admits that his wife and accused Lokesh were Directors in Rathnaroy Compu Soft. He do not know what activities were taking place in that company. In the year 1991 he had constructed his house for which he had taken loan in the year 1991 from SBI. Accused NO.2 was residing in his house. He had made personal transaction with Rathnaroy Infotec and he had informed about the incident to his advocate at the time of giving notice. Accordingly, he has given the notice. He 12 Crl.A.No.1133/2014 denied that intentionally he has sent notice to wrong address. He denied, his wife being Director she had taken some blank signed cheque of accused No.2 for business and said cheque has been misused to file the case. He had not having any transaction with Digiana Computers. He denied several suggestions put by learned counsel for the accused.
13. Complainant further deposed in examination in chief that Bharath Overseas Bank had issued 6 notices the copy of which are produced and marked as Ex.P13 to P18 and copy of notices in Ex.P19 and cash receipts in Ex.P20 to P24 and copy of voluntary retirement given to HMT in Ex.P25 and retirement benefits available to him in Ex.P26. In his further cross examination he deposed that he do not know Digiana computers whether it is proprietorship or partnership concerned. He knew one Mukhul Kumar of Digiana Computers from the year 2004. He do not know his native place. He did not had any transaction with Digiana Computers , Ex.P13 was given by Indian Overseas 13 Crl.A.No.1133/2014 Bank. He denied several suggestions put by learned counsel for the accused.
14. DW1 accused Lokesh.B.H. in his examination in chief deposed that complainant is his paternal uncle from the year 1985 to 2003 himself and complainant were residing under the same roof. There was no financial transaction between himself and complainant. Ex.P2 belongs to his company. Wife of complainant is his aunt. She was Director of Rathnaroy Infotech Pvt.Ltd. Whenever he was away from company with regard to company affairs wife of complainant Bhagya was looking after all the affairs, at that time there were blank cheques signed by him with Director Bhagya. In the year 2003 after his marriage he made separate residence. At that juncture the relationship between complainant and himself was strained. His father and complainant had property dispute which was situated in Devanahalli taluk and Bijjavara. In order to take revenge against his father complainant has foisted a false case 14 Crl.A.No.1133/2014 against him. In Ex.P1 and P2 except his signature other writings are not in his handwriting. When he received warrant form the court he came to know the pending of this case. Hence, he prayed this court to dismiss the complaint in the interest of justice and equity.
15. In his cross examination he deposed that he is BE graduate, he is running one business under name and style Rathnaroy Enterprises company. Previously he was in Rathnaroy Infotech Pvt.Ltd. and he was Managing Director of that company. Same Rathnaroy Infotech Pvt. Ltd. situated in No.63, I Floor, New BEL Road , opposite to M.S.Ramaiah Hospital, Bangalore and his residential address is true as in the complaint. His registered office is Rathna Infotech, No.804, 5th Block, HMT Layout, 18th Cross, Vidyaranyapura, Bangalore. But there is no complicity between address shown in the complaint and his business concern, he did not produce the registration certificate of his company and address shown in cause title 33/1 is 15 Crl.A.No.1133/2014 belong to his office address. He cannot remember the basic fund of Rathnaroy Infotech Pvt.Ltd. There is no audit accounts copy of the company with him. Complainant has filed the case in CC:488/2008 in which he had deposed his evidence , same is marked as Ex.P11, several times he had given signed cheque to complainant, he has not filed any case against the complainant for misappropriation and breach of trust against the complainant. There is document to show that Bhagya was Director to Rathnaroy Info group which was in his name. He denied lengthy suggestions put by learned counsel for the complainant.
16. On analyzing entire case of complainant and accused it is clear that it has been alleged by complainant that accused had issued cheque for Rs.5,00,000/- when he borrowed loan of Rs.16,30,000/- from complainant in two installments. The cheque in this case is one among the cheque issued by the accused. Accused though has taken several defenses but failed to prove his case in accordance 16 Crl.A.No.1133/2014 with defenses taken by him. Mere suggestions and denial has not probative force under law except such suggestions and denial proved beyond preponderance of probability by the accused. But in this case though accused has taken several defenses he failed to prove the same with material supportive and corroborative evidence with cogent reasons to demolish the case of the complainant. But defense taken by accused that there was property dispute between his father and complainant with regard to property situated at Devanahalli is remote one which is having no complicity with the case in hand. Further accused says that he is Managing Director for Rathnaroy Infotech Pvt.Ltd. but he failed to produce any document to show that the company has registered under the Companies Act. Viewing from any angle the complainant has proved his case that accused has issued the cheque as per Ex.P1.
17. This court also relied on case law reported in 2013(2) Kar.L.J. 569 High Court of Karnataka, Circuit Bench 17 Crl.A.No.1133/2014 at Gulbarga in Smt.Peeranbi V/s Hajimalang wherein it is held that:
" NEGOTIABLE INSTURMENTS ACT, 1881, Sections 138 and 139 - Most dangerous provision - Double edged provision - Traders and citizens to be very careful - In dealing with cheque - Trial Court committed error by comparing signature of accused - with that of signature on vakalath - Trial Court acquitted accused - These proceedings were not in nature of a suit for recovery of money - Limited scope -
Whether there was dishonor of cheque - Held, the aspect of dishonor of cheque established thus the accused is sentenced to pay a fine of Rs.3,50,000/- only thus appeal is allowed."
And a decision reported in 2013(3) Kar.L.J. 347 High Court of Karnataka at Bangalore in M.D.Ramakrishnaiah V/s V.Javaregowda wherein it is held:
18 Crl.A.No.1133/2014
" NEGOTIABLE INSTRUMENTS ACT, 1881 , Section 138 - Giving blank signed cheques - To any third person - Is very dangerous - You may be behind the bars - Filling the blanks by other person is no defence - Trial Court rejected the application - Held, if signature is admitted on the cheque there is no need to get opinion of expert in respect other contents of cheque."
18. Hence, in view of above said facts and circumstances of the case and case laws it is clear that the trial court rightly convicted the accused for the alleged offences , this court find no reasonable grounds to interfere in to the orders of conviction and sentence passed by trial court. Accordingly, this court hold Point No.1 in the Negative.
19. POINT No:2 In view of my finding to the point No.1 and for reasons discussed above, I proceed to pass following 19 Crl.A.No.1133/2014 ORDER The Criminal Appeal filed by the appellant under Sec.374 Cr.P.C. is hereby dismissed.
Order of conviction and sentence passed by 18th Addl.CMM, Bengaluru in CC.No:26471/2007 dated: 20.9.2014 is hereby confirmed.
Send LCR along with the copy of this order forthwith to the trial court.
(Dictated to the Judgment writer on Computer, corrected by me and pronounced by me in the open court on this 4th day of January 2016) (A.VIJAYAN), LXVI Addl.CC & SJ, Bangalore.