Santesh Gureddi vs C.R. Devendra

Budihal R.B., J.—Since the parties in both the appeals are one and the same and since common questions of law and facts are involved in both the appeals, they have been taken together to dispose of them by common judgment.

These two appeals are arising out of the common judgment and order dated 12.10.2009 passed by the Fast Track Court-X, Bengaluru in Criminal Appeal Nos. 157/2009 and 158/2009 whereby it has partly allowed by judgment and order dated 28.01.2009 passed in the criminal cases in C.C. Nos. 25462/2006 and 25463/2006 respectively on the file of the XV Additional. Chief Metropolitan Magistrate Court, Bengaluru city.

The appellant, in both the appeals, was the complainant before the trial court and the respondent was the accused. For the sake of convenience, the parties are referred to by their ranking before the trial court.

The Complainant filed the aforesaid criminal cases before the trial court under Section 200 of Cr.P.C. against the respondent herein for the alleged offence under Section 138 read with Section 142 of the Negotiable Instruments Act (for short ''the Act''). The trial court, after considering the merits of the case and the evidence, both oral and documentary, convicted the respondent-accused for the offence under section 138 of the Act and imposed fine. The respondent-accused preferred appeals in Criminal appeal Nos. 157/2009 and 158/2009 before the first appellate court challenging the judgment and order passed by the trial court. The first appellate court has allowed those two appeals, the judgment and order of the trial court was set aside and the matter was remanded for fresh disposal giving opportunity to the respondent-accused to cross examine P.W. 1. Being aggrieved by the judgment and order of the first appellate court, the appellant-complainant has preferred the present criminal appeals on the following grounds:

That, the impugned judgment and order of the first appellate court is illegal, improper and suffers from legal infirmities. The first appellate court has not properly understood the basic principles of law and has erroneously passed the impugned order. The respondent-accused has clearly admitted his liability and has agreed to pay the amount. In pursuance of the said admission, the accused has been convicted by the trial court and the first appellate court has lost sight of the same and passed the erroneous order. Bare perusal of the order sheet of the trial court reveals that though several opportunities were given for cross examination, the accused had failed to cross examine P.W. 1 and went on seeking adjournment and dragged on the proceedings causing undue delay and great inconvenience to court. The trial court, after considering these aspects, had rightly convicted the accused, but the first appellate court should not have interfered with the said matter. Since the liability has been admitted and partial amounts have been paid by the respondent-accused and further amounts in deposits were permitted to be withdrawn, the judgment and order of the trial court is in accordance with law. The first appellate court, on the one hand, has stated that opportunity has not been given for the respondent to cross examine P.W. 1 and on the other hand, imposed cost of Rs. 2,500/- upon the respondent payable to the appellant. This itself shows the capricious approach of the first appellate court. Hence, the appellant sought to allow the appeals and set aside the judgment and order passed by the first appellate court.

Heard the arguments of the learned counsel appearing for the appellant-complainant and the learned counsel for the respondent-accused.

During the course of arguments, learned Counsel for the appellant made the submission that though there is an allegation by the respondent accused that enough opportunity was not given for cross examination of P.W. 1, the order sheet of the trial court clearly shows that sufficient opportunities were given to the respondent and even then, he had not chosen to cross examine P.W. 1 and unnecessarily, dragged on the matter. The learned counsel submitted that though the respondent has admitted issuance of the cheques and also the amount deposited in the court, the first appellate court has wrongly allowed the appeals in respect of the present cases and remanded the matter back to the trial court. Looking to the approach of the first appellate court, it has dealt with the matter as if it is dealing with civil cases. The learned Counsel lastly made the submission that the criminal cases filed were of the year 2006 and now we are in 2015, even then, the appellant-complainant is not in a position to realize the amount, which he had advanced to the respondent. He submitted that the order of remand is patently illegal, perverse and capricious and hence, both the appeals be allowed and the judgment and order of the first appellate court be set aside.

Pre contra, learned counsel appearing for the respondent-accused, during the course of the arguments, made submission that respondent accused sent proper reply as per Ex. P.8 to the notice issued by the appellant-complainant. The appellant has not stated anything in his pleadings about the two demand drafts given to him by the respondent-accused. The learned Counsel submitted that the respondent was not given proper opportunity to cross examine P.W. 1 and also in giving statement under section 313 of the Cr.P.C. Hence, the first appellate court, appreciating these aspects in a proper perspective, has rightly allowed the appeals and remanded the matter to the trial court for fresh disposal. He submitted that in view of the reasoning adopted by the first appellate court and the facts and circumstances of the case, it cannot be said that the judgment and order of the first appellate court in respect of both the appeals is illegal and there are no merits in the appeals and accordingly submitted to dismiss the appeals.

I have perused the common judgment and order dated 12.10.2009 passed by the first appellate court and also the records of the trial court in C.C. Nos. 25462/2006 and 25463/2006 respectively and judgment and order dated 28.1.2009 passed in the said criminal cases.

The case of the complainant is that the accused had received Rs. 2.00 crores from the complainant in connection with joint development of the property bearing No. 11, Victoria Layout, Bengaluru. To discharge the aforesaid legally enforced liability, the accused had issued four cheques dated 18.2.2006, 22.2.2006, 24.2.2006 and 26.2.2006, for a sum of Rs. 50.00 lakh each, in favour of the complainant. When the said cheques were presented for collection to the bank on 26.6.2006, the same were came to be dishonoured as per the bankers endorsement dated 26.6.2006 as ''account closed''. Then the complainant issued legal notice to the accused. Even after service of notice on the accused, he did not pay the amount within 15 days and sent untenable reply dated 19.7.2006. Hence, the complainant filed four complaints before the Magistrate Court under Section 200 of Cr.P.C. alleging that the accused has committed the offence punishable under Section 138 of the Act.

Perused the records of the trial court. The complainant gave his evidence as P.W. 1 and got marked the documents as per Exs. P.1 to P.8. In spite of giving several opportunities to cross examine P.W. 1, the accused had not availed the said opportunities and not cross examined P.W. 1. In the statement recorded under Section 313 of Cr.P.C., though the accused had stated that he was having evidence to be deposed on his side, he had not entered into the witness box to substantiate his plea and hence, the trial court proceeded to pass the impugned order. The issuance of four cheques and his signature on the said cheques is admitted by the accused. In the reply notice dated 19.7.2006, the accused has stated that he had repaid Rs. 100 crore and he was due only to repay the remaining due amount of Rs. 1.00 crore. I have perused the reply notice at Ex. P.8, wherein at para No. 4 of the said notice, it is contended as under:

''My client informs that your client having developed cold feet mid way, requested that he be exonerated from his contractual obligation for personal and professional reasons, and that his client without any demur accepted the request, and refunded a sum of Rs. 1.00 crore by means of two DDs. both drawn on UTI Bank dated 10.4.2006 and 6.5.2006 bearing Nos. 013818 and 14469 of Rs. 50.00 lakh each. I am instructed to further state that said two DDs. were deposited by you at your account at ING Vysya Bank at Sadashiva Nagar Branch, Bengaluru bearing No. 202011004812."

Though such contention was raised in his reply notice, to substantiate the same and to prove it by acceptable evidence, the accused had not entered the witness box. Mere taking the plea is not the proof of rebutting the presumption raised in favour of the complainant as per sections 118(a) and 139 of the Act as the accused has accepted the case of the complainant that he has issued four cheques each for Rs. 50.00 lakh and also admitted his signature on those four cheques. P.W. 1 complainant has stated in his evidence about the accused borrowing Rs. 2.00 crore and issuance of four cheques each for Rs. 50.00 lakh. Therefore, in view of these facts and circumstances, initial presumption in favour of the complainant comes into play as per Section 118(a) and 139 of the Act. Perusing the statement under Section 313 of Cr.P.C., it is clear that the accused has been examined. As per question No. 5 of the said statement, the accused was specifically asked whether he wanted to say anything more in the matter. He has not stated in his answer that he has already paid Rs. 1.00 crore by issuing two DDs. and the said payment pertaining to these transactions as contended in the reply to the legal notice, but he has simply answered ''no''. Therefore, this makes it clear that the accused has utterly failed to rebut the presumption raised in favour of the complainant.

Perused the common judgment and order passed by the first appellate court. The criminal cases pertaining to both the above appeals have been allowed by the first appellate court and the matters were remanded back to the trial court for fresh disposal. In the judgment and order, the first appellate court has observed that it is necessary to give sufficient opportunity to the accused to cross examine P.W. 1 and to adduce his evidence in the matter. Looking to the original records and the order sheets in the criminal cases before the trial court, sufficient opportunity was given to the accused and the cases were adjourned number of times even by imposing cost on many occasions. Even then, the accused had not cross examined P.W. 1 nor led his evidence. In its judgment, the first appellate court has further observed that the questionnaire under Section 313 of Cr.PC. were not properly framed and hence, it prejudices the case of the accused. When the accused has admitted the issuance of four cheques, each for Rs. 50.00 lakh, the question of causing prejudice to the accused does not arise. Therefore, the first appellate court has, without appreciating these material facts placed on record by the complainant, merely allowed the two appeals impugned in these appeals and remanded the matters to the trial court. The remand order is without any justifiable reasons. Perusing the entire materials on record, the complainant has established his case in respect to what he has pleaded in the complaint lodged before the trial court. The contention of the complainant is supported by the oral and documentary evidence. Hence, the impugned judgment and order passed by the first appellate court is not in accordance with law and is liable to be set aside.

In the result, the criminal appeals are allowed. The common judgment and order dated 12.10.2009 passed by the Fast Track Court-X, Bengaluru in Criminal Appeal Nos. 157/2009 and 158/2009 in so far as it relates to the present appeals is hereby set aside. The judgment and order dated 28.01.2009 passed in C.C. Nos. 25462/2006 and 25463/2006 on the file of the XV Additional Chief Metropolitan Magistrate Court, Bengaluru city, is hereby confirmed.