Bangalore District Court
M Koteeswaran vs Rajavel Manikyam on 11 September, 2024
KABC010249712019
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SMT.RASHMI.M.
BA.LL.B., LL.M.
LXVII ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Dated this the 11th day of September 2024.
Crl. Appeal No.1708/2019
APPELLANT : Sri.M.Koteeswaran,
Aged about 37 years,
No.6, E-1 Block,
Navy Quarters, CRI Scheme,
Mogappar East,
Chennai - 600 037.
Also R/at:
No.741, 9th Cross,
4th Block, BEL Layout,
Vidyaranyapura,
Bengaluru.
(By Sri.R.S.P., Advocate)
.Vs.
RESPONDENT : Sri.Rajavel Manikyam,
Aged about 55 years,
R/at.No.133, 80 Feet Road,
Ashwathnagar,
R.M.V.Extension, 2nd Stage,
Bengaluru.
(By Sri.S.A.I., Advocate)
Crl.Appeal No.1708/2019
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JUDGMENT
This appeal is preferred by the appellant challenging the conviction judgment and order of sentence passed by the learned XV Addl. C.M.M., Bengaluru in C.C.No.11675/2017, dated:6.07.2019 as to the alleged offence under Section 138 of N.I.Act and prays to set aside the impugned judgment & order of sentence and acquit the accused.
2. The appellant herein was the accused and respondent was the complainant before the trial court. For the sake of convenience, parties would be referred to by the ranks they were assigned before the trial court.
3. Brief facts of the case are as under:
The accused in order to repay the outstanding dues to the complainant had issued a cheque bearing No.011927, dated:5.03.2017 for Rs.12,00,000/- drawn ICICI Bank, Sahakaranagar Branch, Bengaluru. The complainant had presented the said cheque for encashment through his banker and it came to be dishonoured with an endorsement "Account is closed"
vide banker's endorsement dated:15.03.2017. Thereafter the complainant got issued the legal notice dated:18.03.2017. Despite the service of legal notice, Crl.Appeal No.1708/2019 3 the accused has neither replied the said notice nor paid the cheque amount. Hence the complainant was constrained to file the complaint under Section 200 of Cr.P.C., against the accused for the offence punishable under Section 138 of N.I.Act.
The learned Addl. C.M.M., Bengaluru after taking cognizance, recorded the sworn statement of the complainant and registered the case as C.C.No.11675/2017 and issued summons to the accused. The accused had appeared before the court and engaged his advocate, he was enlarged on bail. The plea was recorded and the accused has pleaded not guilty and claimed to be tried. The complainant got examined himself as P.W.1 and marked 7 documents from Exs.P.1 to 7. After closure of the evidence of complainant, the statement of accused was recorded under Section 313 of Cr.P.C. The accused has denied the incriminating evidence against him. The accused got examined himself as D.W.1 and marked 11 documents from Exs.D.1 to 11. After hearing the arguments, the learned Magistrate has convicted the accused for the offence punishable under Section 138 of N.I.Act and sentenced him to pay a fine of Rs.12,10,000/-, in default he shall undergo simple imprisonment for one year. It is further ordered that out of the fine amount, a sum of Rs.12,05,000/- shall be paid to the complainant as compensation and the Crl.Appeal No.1708/2019 4 remaining balance of Rs.5,000/- shall be remitted to the State as fine.
4. The appellant/accused has preferred this appeal on the following grounds :
It is contended that the impugned judgment was passed on 6.07.2019 when C.C.No.11677/2017 filed by Yadesh, who is none other than son of complainant was pronounced. Further C.C.No.11678/2017 was filed by the said Yadesh, describing himself as the sole proprietor of M/s.Life Style Aqua. Thus, the learned Magistrate has not discussed about the conduct of the complainant and his son having filed three cases at a time against the accused. The learned Magistrate has acquitted the accused in those two cases, but has convicted him in the present case. The learned Magistrate should have accepted the defense of the appellant/accused. The observations made by the learned Magistrate in the impugned judgment is perverse, arbitrary and liable to be set aside. The impugned judgment passed by the trial court is not in accordance with the provisions of Cr.P.C. The learned Magistrate has failed to consider the guidelines of the RBI as to payment of amount for more than 20,000/- is through by way of cheque. In the present case, the respondent has alleged that he has paid a sum of Rs.12,00,000/- to the appellant/accused by way of cash, Crl.Appeal No.1708/2019 5 that too not before any witnesses. As such it is illegal and unbelievable transaction and he has not produced any documentary evidence to prove his contention. The complainant has not produced any document regarding his financial capacity to lend such huge amount to the appellant/accused. The complainant utterly failed to prove the initial burden casted upon him. Thus, the learned Magistrate ought not to have raised the presumption in respect of signing of the alleged cheque under Ex.P.1. The learned Magistrate has not appreciated the evidence as to under what circumstances the signed blank cheque (Ex.P.1) fallen into the hands of the complainant/respondent. The complainant has not produced any documentary evidence or bank transactions in respect of passing of consideration of Rs.12,00,000/- in favour of the appellant/accused. Thus the alleged cheque is without consideration as the complainant has violated the directions issued by the R.B.I. The trial court has not taken into consideration about the provisions of Income Tax Act, 1961 particularly Section 269-SS of the Act, since the complainant has not produced any document to show that he is an Income Tax Assessee. The documents produced by the complainant are not established the source of income. The learned Magistrate has not followed the procedure as laid down in the reported judgment. Hence prayed to allow the Crl.Appeal No.1708/2019 6 appeal by setting aside the impugned judgment and order of sentence passed by the trial court.
5. The respondent put his appearance though his counsel.
6. The trial court records were secured.
7. Heard. The learned advocate for appellant filed written arguments.
8. The points raised for consideration are as under:
1. Whether the appellant/accused has made out sufficient grounds to interfere with the impugned judgment and order of sentence passed by the trial court ?
2. What Order?
9. My findings to the above points are:
POINT No.1 : Negative, POINT No.2 : As per final order, for the following:
REASONS
10. POINT No.1:- I have considered the complaint averments, oral and documentary evidence placed before the trial court along with appeal averments placed before this court.
Crl.Appeal No.1708/2019 7
11. It is the contention of the appellant that the impugned judgment was passed on 6.07.2019 when C.C.No.11677/2017 filed by Yadesh, who is none other than son of complainant was pronounced. Further C.C.No.11678/2017 was filed by the said Yadesh, describing himself as the sole proprietor of M/s.Life Style Aqua. Thus, the learned Magistrate has not discussed about the conduct of the complainant and his son having filed three cases at a time against the accused. The learned Magistrate has acquitted the accused in those two cases, but has convicted him in the present case. The learned Magistrate should have accepted the defense of the appellant/accused. The observations made by the learned Magistrate in the impugned judgment is perverse, arbitrary and liable to be set aside. The impugned judgment passed by the trial court is not in accordance with the provisions of Cr.P.C. The learned Magistrate has failed to consider the guidelines of the RBI as to payment of amount for more than 20,000/- is through by way of cheque. In the present case, the respondent has alleged that he has paid a sum of Rs.12,00,000/- to the appellant/accused by way of cash, that too not before any witnesses. As such it is illegal and unbelievable transaction and he has not produced any documentary evidence to prove his contention. The complainant has not produced any document regarding his financial capacity to lend such Crl.Appeal No.1708/2019 8 huge amount to the appellant/accused. The complainant utterly failed to prove the initial burden casted upon him. Thus, the learned Magistrate ought not to have raised the presumption in respect of signing of the alleged cheque under Ex.P.1. The learned Magistrate has not appreciated the evidence as to under what circumstances the signed blank cheque (Ex.P.1) fallen into the hands of the complainant/respondent. The complainant has not produced any documentary evidence or bank transactions in respect of passing of consideration of Rs.12,00,000/- in favour of the appellant/accused. Thus the alleged cheque is without consideration as the complainant has violated the directions issued by the R.B.I. The trial court has not taken into consideration about the provisions of Income Tax Act, 1961 particularly Section 269-SS of the Act, since the complainant has not produced any document to show that he is an Income Tax Assessee. The documents produced by the complainant are not established the source of income. The learned Magistrate has not followed the procedure as laid down in the reported judgment.
12. It is the contention of the appellant that the learned Magistrate acting under Section 355 of Cr.P.C., pronounced the judgment under Section 255(2) of Crl.Appeal No.1708/2019 9 Cr.P.C., and convicted the accused. The trial of the case was "summons case". It is settled law that the judgment ought not to have been passed acting under Section 355 r/w. Section 255(2) of Cr.P.C. The learned Magistrate tried the case as summary case as it was beyond six months period ought to have been converted to warrant case. The said lacuna cannot be cured. The said illegality in the judgment is a ground to set aside the impugned judgment in C.C.No.11675/2017.
13. In this regard it is pertinent to note that the judgment is under Section 355 of Cr.P.C. As Section 355 of Cr.P.C., deals with judgment in cases under Section 138 of N.I.Act. The learned Magistrate has passed the order "As per the provision of Section 255(2) of Cr.P.C., the accused is hereby sentenced for the offence punishable under Section 138 of N.I.Act, 1881 ......". As rightly stated by the appellant the proceedings under N.I.Act is summary and if it beyond goes six months it has to be converted to warrant case. The non-conversion of the case to warrant case is not fatal and the judgment if any passed without converting the case to warrant case cannot be held to be illegal. Further the learned Magistrate has rightly pronounced the judgment under Section 255(2) of Cr.P.C., for the offence punishable under Section 138 of N.I.Act.
Crl.Appeal No.1708/2019 10
14. It is further contention of the appellant that the learned Magistrate has not considered the documents furnished by him which are marked from Exs.D.1 to 11. and the evidence placed before him before the trial court. In this regard it is pertinent to note that in para Nos.9, 11 and 12 of the judgment, the learned Magistrate has made discussion of the evidence led by the accused (D.W.1).
15. It is the contention of the appellant/accused in his affidavit filed in lieu of his examination in chief wherein he has got examined himself as D.W.1. He has stated that he has lost his cheque leaf in Chennai on 29.09.2016 bearing No.011927 drawn on ICICI Bank, Sakara Nagar Branch, Bengaluru. In this regard he has filed a complaint. He came to know that his office assistant Yadesh, son of the complainant herein misused the lost cheque in an incident took place in Kolathur Police Station, Anna Nagar District for the reason money quarrel. In this regard he has furnished copy of the complaint (Ex.D.1). He has informed his banker ICICI Bank to stop payment of the said lost cheque on 24.01.2017, in this regard he has furnished copy of the bank letter (Ex.D.2).He has given reply notice as per Ex.P.3. Exs.P.4 and 5 are postal receipt and acknowledgment respectively. He has stated that he and the complainant were in good terms Crl.Appeal No.1708/2019 11 and during that time on 11.05.2016 Rs.7,00,000/- was withdrawn from his account, out of which Rs.4,00,000/- was deposited to the account of M/s.Life Style Aqua on 13.05.2016 and a sum of Rs.2,50,000/- was deposited to the account of Subedha International, Kolkatta. The remaining amount out of Rs.7,00,000/- was retained by Yadesh. He has furnished bank account extract (Ex.D.6), account details of having deposited Rs.1,00,000/- to the account of the complainant in C.C.No.11678/2017 (Ex.D.7). The complaint in Tamil language and its translated copy is marked at Ex.D.8 and Ex.D.8(a). The police notice in Tamil language and its translated copy is marked at Ex.D.9 and Ex.D.9(a), Affidavit of the translator (Ex.D.10) and the letter given by ICICI Bank (Ex.D.11).
16. On considering the said documents placed before the trial court by the accused/appellant, it is observed that Ex.D.1 is dated:21.04.2017 wherein the bank has given a letter stating that on September 12 th 2016 the customer i.e., the accused herein had given a request to stop payment of 15 cheques from 011925 to 011939. However 011931 and 011936 have already been passed. But in the present case cheque dated:
5.03.2017 bearing No.011927 drawn on ICICI Bank, Sahakaranagar branch, Bengaluru and the said cheque was returned with a memo as per Ex.P.2 stating that the account is closed.
Crl.Appeal No.1708/2019 12
17. The accused has not placed any document before the court to show that as on 5.03.2017 his account was closed. Even otherwise Ex.D.1 which is dated:21.04.2017 i.e., after the said cheque was placed for encashment on 15.03.2017 the concerned bank gave a letter stating that the cheques were asked to be stopped and it states that the appellant/accused herein is their customer. If the account was closed then it is not clear as to why the bank did not mention the appellant was their customer and it is not clear as to why Ex.D.1 is silent that as on the date of issuance of the said document the account of the appellant/accused was closed. Hence it raises doubt regarding the genuinity of the letter (Ex.D.1) issued by the bank. Even otherwise the accused has chosen not to examine the author of the document i.e., any of the bank officials of ICICI Bank in support of Ex.D.1.
18. The appellant/accused has furnished the document said to be a police complaint which is in Tamil language along with its translated copy which are marked as Exs.D.8 and Ex.D.8(a). On perusal of Ex.D.8 i.e., original complaint it does not carry the seal of the police of having received the same nor any document is placed before the court regarding the receipt of the complaint by the police. Hence the said police complaint cannot be relied upon.
Crl.Appeal No.1708/2019 13
19. Ex.D.9 is a police notice in Tamil language. The appellant/accused has furnished the translated copy in Ex.D.9(a). On perusal of Ex.D.9 which has a heading in English "Police Department Notice under Section 160 and 91 of Cr.P.C.". Even though the said document is in Tamil language it carries the date 31.12.2016 in English. R.C.No.5176/COP(V)/2016. It is a four line document in Tamil language which mentions 2.01.2017 and 4.00 in English language, but it does not mention any numerical number in English. Even otherwise on perusal of Ex.D.9(a) which is said to be the English translated version of Ex.D.9 does not have the heading Police Department Notice under Section 160 and 91 of Cr.P.C. It also does not mention RC No.5176/COP(V) 2016, 31.12.2016, 2.01.2017, 4.00. On the contrary it goes to mention the cheque numbers. Even if a person who does not know Tamil language compare Ex.D.9 and Ex.D.9(a), it can be safely said that Ex.D.9(a) is not the translation of Ex.D.9. As such Ex.D.9 cannot be relied upon. Further Ex.D.11 is regarding payment of Rs.1,00,000/- to three account numbers on 13.05.2016 is not of any help to the appellant/accused.
20. Further in the cross examination of the complainant/P.W.1 nothing has been elicited by the appellant/accused to prove that the complainant or his Crl.Appeal No.1708/2019 14 son had stolen the cheque and had misused the same. The complainant has furnished his I.T.Returns details as per Ex.P.7.
21. It is further contention of the appellant/accused that the bank endorsement (Ex.P.2) does not pertain to the disputed cheque as the presentation of the cheque is mentioned on 14.03.2017 and the date of return of the cheque is mentioned on 15.03.2017. The endorsement issued by the bank is mentioned the number of the cheque as 560052031.
22. In this regard it is pertinent to refer to the memo (Ex.P.2) issued by Karnataka Bank, wherein the sort code 560229034 is mentioned which is sort code mentioned next to the cheque number on Ex.P.1. There is no mention of 560052031 in the cheque (Ex.P.1) or in the memo (Ex.P.2) as contended by the appellant.
23. In view of the discussion made supra, it can be safely said that the learned Magistrate has properly appreciated the oral and documentary evidence placed before it. The acquittal of the appellant/accused in another case with respect to some other cheque is not a ground for acquittal in this case. The appellant has not made any grounds to interfere with the impugned judgment passed by the trial court. Accordingly the Point No.1 is answered in the Negative.
Crl.Appeal No.1708/2019 15
24. POINT No.2 : My finding on this point is as per following :
ORDER The Crl. Appeal filed by the appellant is hereby dismissed. Consequently, the impugned judgment passed by the learned XV Addl. C.M.M., Bengaluru in C.C.No.11675/2017, dated:6.07.2019 stands confirmed.
Send back the records to the trial
court along with the copy of this
judgment.
(Dictated to then Stenographer Grade-II directly on computer, corrected, signed and then pronounced by me in the open court on this the 11 th day of September 2024) (RASHMI.M) LXVII Addl.City Civil & Sessions Judge, BENGALURU.Digitally signed by RASHMI M
RASHMI Date:
M 2024.09.13
11:42:56
+0530
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