Ramananda Rao vs Smt. Girija Kasbaker

A.V. Chandrashekara, J.—Heard the learned Counsel appearing for the parties. Perused the records.

Present petition is filed under Section 397 of Criminal Procedure Code, 1973 read with Section 401 of Cr.P.C. challenging the judgment of conviction passed in C.C. No. 1476 of 2010, by the XX Additional CMM, Bengaluru for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 and confirmation of the same by the First Appellate Court in Crl. A. No. 457 of 2014 in the appeal filed in terms of Section 374(3) of Cr. P.C. Several grounds have been urged in this revision petition. Parties are referred to as accused and complainant as per their rankings given in the Trial Court.

Facts leading to filing of this revision petition in terms of Section 397 of Cr. P.C. are that accused was introduced to the complainant by a common friend Sri G. Venugopal. Accused is stated to have availed, in all, a sum of Rs. 7,50,000/- in connection with the marriage of her daughter, he did not repay the same in spite of several requests and ultimately the accused handed over four (4) cheques drawn in favour of the complainant for a sum of Rs. 4,00,000/-, Rs. 2,00,000/-, Rs. 1,00,000/- and Rs. 50,000/- bearing Cheque Nos. 897618, 897619, 897620 and 026645 respectively. According to the complaint these cheques were given in discharge of the whole debt, when they were presented for encashment, ultimately, they were returned with an endorsement ''insufficient funds'' in the S.B. Account of the accused. Hence, the complainant got issued a legal notice on 21-8-2009 through her Advocate calling upon the accused to pay the amounts mentioned in the four cheques lest would be constrained to file a complaint in terms of Section 138 of N.I. Act.

According to the complainant-accused got issued a reply through his Advocate admitting the availment of loan ana issuing of four cheques. Case of the accused, as could be Seen from the reply dated 1-9-2009 is that, he was paying interest at the rate of 36% p.a. from the date of availment of loan, every month. According to the accused, the above said cheques were undated and they had been given as security when the amount was availed in the year 2005 and August 2006 he shifted himself to Mysura. Accused is stated to have paid a sum of Rs. 8,46,000/- towards interest and same was appraised to complainant and she was surprised to know the contents of the legal notice. Hence, accused had intimated the complainant that he was agreeable to pay the principal amount of Rs. 7,50,000/- in monthly instalments of Rs. 20,000/-. On 6-5-2009, accused is stated to have admitted the borrowings made on 9-5-2005, 22-12-2005,16-4-2006 and 27-10-2007.

Complainant is examined as P.W. 1 and 14 exhibits have been got marked. Accused has not examined himself in support of the defence taken up, ultimately the Trial Judge of the Trial Court has convicted the accused for offence punishable under Section 138 of N.I. Act and sentenced to pay a fine of Rs. 9,00,000/-, out of the same, a sum of Rs. 8,90,000/- to go" to the complainant as compensation in terms of Section 357 of Cr. P.C. and a sum of Rs. 10,000/- towards fine for defraying the State.

The judgment of conviction dated 9-4-2014 is called in question in Crl. A. No. 457 of 2014. ultimately, the said appeal is also dismissed confirming the judgment of Trial Court. It is these concurrent findings called in question on the various grounds set out in this petition.

During the pendency of the petition, an application is filed in terms of Section 91 of Cr. P.C. along with three (3) documents, they are:

i. Passbook of the S.B. Account of the accused maintained in Canara Bank, BTM Layout Branch, Bengaluru.

ii. Copy of the passbook of the S.B. Account of the accused maintained in HDFC Bank, Saraswathipuram, Mysuru; and

iii. Cash remit and receipts for having deposited the amounts into the S.B. account of the husband of the complainant on various dates in ICICI Bank.

Objection have been filed by the complainant to the said application, supported by an affidavit. Hence, this application is taken up along with the merits.

After going through the records and after hearing the learned Counsel appearing for the parties following points arise for consideration:

i. Whether any good ground has been made out to allow the revision petition ana to remit the matter to the Trial Court as contended by the learned Counsel for the petitioner?

ii. Whether any interference is called for, if so, to what extent?

Point No. 1: Section 118A of N.I. Act enables the Court to presume that the cheque is always drawn for consideration and Section 91 of enables the Court to presume that a cheque is issued either in discharge of partial or whole debt. This presumption is a rebuttal presumption. This presumption can be effectively rebutted by the accused either by examining himself as witness or by effectively cross-examining the complainant as witness, as the case may be.

The complaint filed under Section 200 of Cr. P.C., which is marked as per Ex. P. 14 does not speak anything about the year or month in which the amount of Rs. 7,50,000/- was advanced to the accused, but anyhow there is reference about the need of availing loan as financial assistance by the accused from the complainant. In paragraph No. 2 of Ex. P. 14-the complaint, it is averred that accused approached the complainant in the presence of her husband and common friend Sri G. Venugopal seeking financial help to meet the marriage expenses of his daughter. The dates on which the amount was paid to the accused are not forthcoming, but the complainant, who is examined as P.W. 1 has given the details of payment of amount on different dates by the accused; the same is found in cross-examination recorded on 29-10-2010. P.W. 1 has deposed that she had given a sum of Rs. 7,50,000./- in all, to the accused and out of them a sum of Rs. 4,00,000/- was paid in May 2005, Rs. 2,00,000/- was paid in December 2005 and Rs. 1,50,000/ was paid in December and entire amount was paid in cash. She has further deposed that said amount so paid by her to the accused was out of retirement benefit received by her husband. She has further deposed that the accused had assured her to return the money with interest as he was in urgent need to meet the expenses in connection with marriage of his daughter. The fact that the marriage of the daughter of accused was held in the year 2005 itself is not disputed in any manner.

It is the case of the complainant that she had made several attempts to the accused requesting him to return the amount, but he went on postponing the same and ultimately in the year 2009 accused is stated to have handed over the four cheques, which are marked as Exs. P. 1 to P. 4. They are all dated 11-5-2009, which are dated 11-5-2009 and they are drawn for a sum of Rs. 4.00.000/-, Rs. 2,00,000/-, Rs. 1,00,000/- and Rs. 50,000/-.

As pointed out by the learned Counsel for the petitioner it is understandable issue as to why a prudent man would give four cheques for the amounts mentioned above, when he could give a single cheque for a sum of Rs. 7,50,000/-. There is a lot of force in the said submission made the learned Counsel for the petitioner.

Learned Counsel has brought to the notice of the Court that the reply got issued by the accused as against the legal notice on dated 1-9-2009. The same is marked as Ex. P. 13. It is true that accused has admitted the availment of loan amounting to Rs. 7,50,000/-. The case of the accused is that the cheques so issued were unnumbered and they had been issued in the year 2005 and later on he shifted himself to Mysuru. It is the case of the accused that, in all, he had paid a sum of Rs. 8,46,000/- towards the interest charged at the rate of 36% p.a. and he was unable to repay the principal amount and therefore, accused had requested for payment of principal amount in instalments at Rs. 20,000/- per month. Placing reliance upon this Ex. P. 13, learned Counsel for the petitioner has vehemently argued that the case of the complainant is not fully established and the Trial Court is not justified in convicting the accused and the First Appellate Court in dismissing the appeal and thereby upholding the judgment of conviction

At the same time, P.W. 1, the complainant, has relied upon Ex. P. 15, an acknowledgment of debt stated to have been given by the accused to the complainant, which is styled as confirmation regarding dues. The accused has confirmed about borrowing of a sum of Rs. 4,00,000/-, Rs. 2,00,000/-, Rs. 1.00.000/- and Rs. 50,000/- on 9-5-2005, 22-12-2005, 16-4-2006 and 27-10-2007, respectively owing, in all, a sum of Rs. 7,50,000/-. But if the contents of Ex. P. 15 were really true, it would have found a place in Ex. P. 9, the legal notice.

Apart from this, the dates as mentioned in Ex. P. 15 glaring differ with the dates on which the amount has been advanced as found in the deposition of P.W. 1. This aspect of the matter is not considered by the Trial Court. The evidence is not properly assessed and the inference drawn by the Trial Court is not correct.

Some important documents have been filed along with the application filed under Section 91 of Cr. P.C. and the passbook of the accused maintained in Canara Bank, BTM Layout Branch discloses that the deposit of Rs. 12,000/- in S.B. Account of the complainant Smt. K. Girija on 9-6-2005 and 12-7-2005, a sum of Rs. 10,000/- each on 10-9-2005, 15-10-2005, 10-12-2005, 12-1-2006, 20-1-2006, 10-3-2006, 12-5-2006 respectively. This probablises the theory of the accused that some amount had been paid into the account of the complainant every month by way of interest.

Similarly the statement of account of the accused maintained in HDFC Bank is also produced and it discloses that the accused had paid a sum of Rs. 19,000/- on 9-1-2007, February 2007, 27-3-2007, 24-5-2007, 24-9-2007, 24-1-2008, 24-10-2007 and 26-11-2007, 24-12-2007, 26-2-2008, respectively. Similarly payment of Rs. 25,000/- and Rs. 20,500/-, was made into the account of the husband of the complainant. Acknowledgements have been produced to show that on 8 occasions substantial account had been credited to the account of the husband of the complainant through ICICI Bank. These transactions relate to the period between 2008-09 i.e., prior to the filing of the complaint.

At one breath complainant states that she had given the amount as loan and at another breath she states that she had advanced the loan to the accused as he agreed to pay interest. In fact there is no reference about these repayments in her evidence. She had specifically deposed that she had an account with bank and husband had maintained accounts with bank and there was no difficulty to produce the bank statement. In the light of non-production of such bank statement in spite of their being no difficulty, the accused has produced these documents to probablise the repayment made and the cheques being issued in the year 2005. These aspects are not at all considered in right perspective.

It is un-understandable that how a lady could advanced such an huge amount of Rs. 7,50,000/- without interest. If it had been advanced for interest the complainant should have specifically mentioned about the receipt of interest on different dates. In this view of the matter, this Court is of the considered view that the Trial Court as well as First Appellate Court have not considered the very evidence placed on record. Hence, injustice is caused to the accused and the accused must be given an opportunity to examine himself and get the documents marked so that Court can arrive at a proper conclusion. Suitable opportunity must be given to the accused to confront the documents now the filed before this Court during the further cross-examination of P.W. 1 and he would had liberty to examine himself in support of his stand taken during the course of cross-examination as also in the reply notice.

It is submitted by the learned Counsel for the petitioner that the accused has deposited a sum of Rs. 2,00,000/- and a sum of Rs. 1,00,000/- before the this Court and the Trial Court respectively in accordance with the order passed by the First Appellate Court at the time of admission of the appeal. This needs to be refunded to the accused. Hence, the following:

ORDER

i. Application I.A. No. 1 of 2016 filed under Section 91 of Cr. P.C. is allowed and consequently, the revision petition is also allowed and the impugned order passed by the Trial Court dated 9-4-2014 in C.C. No. 1476 of 2010, which is confirmed by the First Appellate Court by the order dated 26-11-2014 in Crl. A. No. 457 of 2014 is hereby set aside.

ii. The matter is remanded to the Court of XX Additional CMM, Bengaluru for giving opportunity to the accused to confront certain documents to P.W. 1 and cross-examine to that extent and also to permit the accused to examine himself in support of his defence.

iii. Petitioner is permitted to withdraw the deposit made before this Court as well as the Trial Court and the withdrawal is subject to the outcome of the case in C.C. No. 1476 of 2010.

The parties shall appear before the Trial Court on 7-6-2016 without fail and the learned Judge to dispose of the matter preferably within three months from 7-6-2016. Both the parties and Counsel to cooperate with the trial judge in the disposal of the matter in accordance with law.

Sri K.S. Ramesh, learned Counsel for the petitioner is permitted to take back the documents filed along with I.A. No. 1 of 2016 filed under Section 91 of Cr. P.C., after giving an acknowledgment and permitted to produce the same before the Trial Court.

Office is directed to send the lower Court records to the concerned Court forthwith.