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2013 DIGILAW 137 (KAR)

Vijendra v. S. D. Hosamani

2013-02-05

B.V.PINTO

body2013
JUDGMENT B.V. Pinto, J.—This appeal is filed challenging the judgment dated 17.03.2007 passed by the Fast Track Court-II, Bagalkot in Crl. A. No. 28/2006 acquitting the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1981 (for short 'the Act') thereby reversing the judgment of conviction dated 30.06.2008 passed by the I Additional JMFC, Bagalkot at Bagalkot in C.C. No. 1260/2002 whereunder, the learned Magistrate was pleased to convict the accused and sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs. 1,75,000/- with a direction that out of the fine amount of Rs. 1,75,000/- collected from the accused a sum of Rs. 1,70,000/- be paid to the complainant by way of compensation. The complainant filed a complaint under Section 200 of Cr.P.C. against the accused before the JMFC, Bagalkot alleging that he is a practicing Advocate at Bagalkot, Dharwad and Labour Court, Bijapur and the accused is the friend of the complainant since 10 years and accused was working as a F.D.A. in the Evaluation Department of Karnataka, University Dharwad. 2. It is the case of the complainant that accused was in need of money for his domestic problems and therefore, the complainant paid a sum of Rs. 1,50,000/- to the accused. The accused had promised to return the amount within four to five months and when the complainant demanded the said amount, the accused issued a cheque bearing No. 792100 on 20.05.2006 for Rs. 1,50,000/- drawn on the State Bank of India, Karnataka University Campus, Dharwad Branch. It is the case of the complainant that the said cheque when presented was dishonoured for insufficient funds and thereafter the complainant issued a statutory notice on 11.06.2007 to the accused. Though the accused has received the said notice, he has not replied to the notice issued by the complainant nor paid the cheque amount. Therefore, the accused has committed the offences punishable under Sections 138 and 142 of the Act. On filing of the complaint, the learned Magistrate took cognizance of the offence and issued summons to the accused. 3. On receipt of the aforesaid notice, the accused appeared before the Court and denied the accusation made against him and thereafter the trial took place in which the complainant examined himself as P.W. 1 and also examined one Chandrashekhar Appanna Kabadagi as P.W. 2. The complainant further produced documents Exs. 3. On receipt of the aforesaid notice, the accused appeared before the Court and denied the accusation made against him and thereafter the trial took place in which the complainant examined himself as P.W. 1 and also examined one Chandrashekhar Appanna Kabadagi as P.W. 2. The complainant further produced documents Exs. P1 to P5. The defence of the accused was one of total denial in so far as the liability is concerned. It is the case that he had given the cheque to one Gopalkrishna Katti to purchase the motor cycle. The accused has got himself examined as D.W. 1 and also examined one Mahabaleswar Appu Aikrat as D.W. 2 and produced documents as per Exs. D1 to D26. 4. The learned Magistrate after appreciating the evidence on record came to the conclusion that the complainant has proved the case against the accused and convicted him for the offence under Section 138 of the Act. Being aggrieved by the said order of conviction and sentence, the accused filed an appeal before the learned Sessions Judge and Fast Track Court-II, Bagalkot and the learned Sessions Judge allowed the said appeal in Crl. Appeal No. 28/2006 and acquitted the accused for the offence in which he stood convicted by the learned Magistrate. Being aggrieved by the said acquittal order passed by the learned Sessions Judge, this appeal is filed. 5. Heard Sri. Neelendra D. Gunde, learned Counsel for the appellant and also Sri. S.N. Banakar, learned Counsel for the respondent. 6. Learned Counsel for the appellant submits that the learned Sessions Judge has acquitted the accused on the ground that the complaint does not disclose any cause of action and that the complainant has not stated about the jurisdiction and the complainant has not furnished the list of witnesses along with the complaint as required under Section 204(2) of Cr.P.C. Learned Counsel further submits that all these three grounds on which the appeal has been allowed are not tenable and that it is specifically stated in the complaint that when the notice was issued to the accused he has not paid the amount of cheque. Therefore, the ingredients of Sections 138 and 142 of the Act have been mentioned in the complaint. Therefore, the ingredients of Sections 138 and 142 of the Act have been mentioned in the complaint. It is his submission that the complaint itself discloses the jurisdiction of the Court in which the said complaint is entertained and nothing prevented the accused from challenging the jurisdiction of the Court, at the beginning of the trial. The complainant and accused having left the trial to go on cannot be heard after he is convicted that the Court has no jurisdiction. It is further submitted by him that in so far as non furnishing of list of witnesses is concerned, it is an irregularity and not illegality and if the accused had any grievance so far as non furnishing of list of witness is concerned, then he ought to have preferred for quashing of the proceedings. Having allowed the trial to go on it cannot lie in the mouth of the accused to say that the complainant has not furnished any list of witnesses. It is further submitted by him that when the witness was proposed to be examined by the complainant, nothing prevented the accused from refusing to examine his witnesses on the ground that the complainant has not furnished the list of witnesses and after cross-examining the witnesses P.Ws. 1 and 2 it does not lie in the mouth of the accused to say that list of witnesses has not been furnished. Learned Counsel for the appellant submits that all the grounds on which the appeal has been allowed by the learned Sessions Judge are not tenable. Therefore, he submits that the order of learned Sessions Judge in acquitting the accused may be set aside and the judgment of conviction passed by the learned Magistrate may be confirmed. 7. Learned Counsel for the respondent-accused on the other hand submits that it is the case of the accused that towards purchase of vehicle, the accused had given six cheques to one Gopalkrishna Katti and that out of the said cheques, the cheque involved in the present case is one of them which has been misused by the complainant. It is submitted by the learned Counsel for the respondent that the accused has produced as many as 26 documents which indicate that accused had given the cheques to one Gopalkrishna Katti as mentioned in Ex. D1. It is submitted by the learned Counsel for the respondent that the accused has produced as many as 26 documents which indicate that accused had given the cheques to one Gopalkrishna Katti as mentioned in Ex. D1. He has further produced the copy of the notice issued to the said Gopalkrishna Katti in which it is mentioned that these blank cheques have been issued to the said Gopalkrishna Katti and that as per Ex. D2 the said notice has been acknowledged by Gopalkrishna Katti. Learned Counsel further submits that Ex. D3 is the document which indicates that the said Gopalkrishna Katti has acknowledged his fault and pleaded guilty for having received the cheque and handing it over to some eight persons named in Ex. D3. Ex. D4 is the certified copy of order sheet in P.C. No. 124/2004 in which the accused has filed complaint against the said Gopalkrishna Katti and others for misusing his cheques and praying for taking action for the offences under Sections 120(B), 420, IPC and other Sections of law. Ex. D6 is the letter issued by the State Bank of India addressed to the accused wherein, the Manager of the Bank has acknowledged the stop payment notice issued by the accused. Ex. D7 is the counter foil of the said cheques numbering about 12 including 792100. Ex. D8 is the letter addressed to the accused by the Bank Manager stating that letter dated 23.03.2002 was issued by the Bank on the communication received by the Bank on 23.02.2002 at 1.40 p.m. Exs. D9 and D10 are the certified copies of sale-deed indicating therein that he has sold his properties and constructed the house suggesting that there was no need for him to take loan from the complainant. Ex. D11 is the letter issued by the Mahalakshmi Co-operative Bank Ltd., Dharwad indicating that the accused had taken loan of Rs. 5,00,000/- towards construction of the house. Ex. D12 is the letter from the L.I.C. Finance Ltd., indicating sanction of loan of Rs. 1,25,000/- to the accused. Ex. D13 is the letter from the Corporation indicating that the accused has built a house and Ex. D14 to Ex. D17 are the cheques numbering six, in all, in the same series as that of the cheque in question. Ex. D12 is the letter from the L.I.C. Finance Ltd., indicating sanction of loan of Rs. 1,25,000/- to the accused. Ex. D13 is the letter from the Corporation indicating that the accused has built a house and Ex. D14 to Ex. D17 are the cheques numbering six, in all, in the same series as that of the cheque in question. Ex. D18 is a blank postal cover on which the name of the accused is found on one side and the name of G.S. Katti is found on the other side. Ex. D19 is the letter written to the Manager, State Bank of India by the accused requesting him not to honour the cheque bearing Nos. 792085, 792088, 792089, 792090 and two more cheques without number. The said letter though does not contain any seal of the Bank finds the date as 23.3.2002 written in a separate ink. Ex. D20 is the complaint filed by one Tulajaprasad Pande against the accused for the offence punishable under Section 138 of the Act, in respect of the cheque bearing No. 792082. Ex. D21 is the Xerox copy of cheque bearing No. 792082 produced in the Private Complaint No. 07/2003 before the Prl. Civil Judge (Jr. Dn.) and JMFC, Dharwad. Ex. D22 is the letter written by the State Bank of India to the accused stating that the cheque was returned for insufficiency of funds. Exs. D23 to Ex. D25 are the three cheques bearing Nos. 792083, 792095, 792096. Ex. 26 is the letter dated 02.06.2003 written by the accused to the Divisional Manager, State Bank of India, Hubli intimating therein that the cheque Nos. 792081 to 792100 (20 cheques) are not to be honoured if they are presented for payment in the said bank. 8. Learned Counsel for the respondent-accused submits that in view of the aforesaid documents produced by the respondent he had made it clear that the cheques were issued to one Gopalkrishna Katti and that the said cheques were blank cheques and the complainant has misused by entering his name into the cheques and presenting the same before the Bank for payment. 9. 9. On careful observation of the entire materials produced by the complainant and the accused before the Court below, it is clear that at the first instance when the notice was issued under Section 138 of the Act to the accused, accused has not replied to the same in spite of receiving the same as per Ex. P5. There is no complaint regarding taking cognizance of the offence by the learned Magistrate in so far as the ingredients of Section 138 of the Act is concerned. Though the accused has argued before the learned Sessions Judge that the copy of the list of witnesses was not furnished to him, this ground has not been uttered by him during the entire trial. Section 465 of Cr.P.C. clearly mention that no finding, sentence or order passed by a Court of competent jurisdiction may be reversed or altered by a reason of error, omission or irregularity in any sanction, unless there is an occasion for failure of justice. In this case, the non supply of the list of witnesses is not shown to have caused any failure of justice to the accused, in that when P.W. 1 or P.W. 2 were present for giving evidence in the presence of the accused, accused could have objected for examining the said witnesses on the ground that he was not aware as to who was the witness in view of the fact that list of witnesses is not furnished to him. Having suffered an order of conviction it cannot lie in the mouth of the accused to urge that he was not having the list of witnesses. Both the witnesses have been fully cross examined by the accused without any complaint and the learned Magistrate has allowed the witnesses to be cross-examined in full. 10. So far as the ground regarding marking of the complaint is concerned it is the private complaint filed before the Court. The non marking of complaint during the course of evidence and non furnishing of list of witnesses along with complaint is not fatal to the case of complainant. Nowhere in the Cr.P.C. or in the Evidence Act it is stated that the complaint should be marked as exhibit. A reference is made to the decision of this Court reported in 2007 KANTLJ 178 3 : (2007 (3) AIR Kar. Nowhere in the Cr.P.C. or in the Evidence Act it is stated that the complaint should be marked as exhibit. A reference is made to the decision of this Court reported in 2007 KANTLJ 178 3 : (2007 (3) AIR Kar. R 493), wherein, relying on a ruling of this Court reported in V. Satyanarayana Vs. Sandeep Enterprises, (2005) CriLJ 12 passed by the Division Bench, this Court has held that a complaint before the Court need not be marked as an exhibit. Hence, it is clear that complaint need not be marked in the cross-examination when the complainant speaks regarding the complaint that itself would be sufficient to consider the materials found in the complaint. Only if there is discrepancy between the complainant's evidence before the Court and the version in the complaint the accused can use said benefit in his favour. Therefore, under the circumstances, the ground on which the learned Sessions Judge has held that the complaint is not proved is not tenable. Therefore, I hold that the second ground for acquitting the accused is also not sustainable. So far as the third ground on which the learned Sessions Judge has acquitted the accused is that the cause of action has not been mentioned in the complaint. I would like to refer to the words in the complaint which states as follows: "Cheque was drawn on the Bank of S.B.I., Karnataka University, Dharwad and the same was presented through State Bank of Hyderabad, Bagalkot the same was dishonoured for insufficiency of funds". I am of the opinion that these words found in the complaint filed by the complainant do attract the jurisdiction of the Court at Bagalkot since the cheques were presented for payment and the notice of dishonour has been received by the complainant at Bagalkot, the Court at Bagalkot has jurisdiction. It is not necessary that if a complaint is filed the citizen has to mention to the Court that the Court has got jurisdiction. It is for the Court while taking cognizance under Section 190 of Cr.P.C. to find out whether there is jurisdiction for the Court. Added to it, apart from the learned Magistrate taking cognizance right at the beginning of the proceedings, the accused has not challenged the same at the time when he was summoned before the Court. It is for the Court while taking cognizance under Section 190 of Cr.P.C. to find out whether there is jurisdiction for the Court. Added to it, apart from the learned Magistrate taking cognizance right at the beginning of the proceedings, the accused has not challenged the same at the time when he was summoned before the Court. Having not done so, it does not lie in the mouth of the accused now urge that the Court had no jurisdiction. 11. I have gone through the evidence on record and the probability of the defence taken by the accused and the grounds considered to find him guilty by the learned Magistrate. It is stated in Ex. D1 that he has issued six cheques to Gopalkrishna Katti and that according to him Gopalkrishna Katti is available in Dharwad itself. However, nothing prevented him from examining the said Gopalkrishna Katti and to show to the Court that cheque Bearing No. 79200 was in fact received by him and thereafter that the said cheque was handed over to the complainant. On a careful consideration of Ex. D3 which is stated to be a letter written by the said Gopalkrishna Katti to the accused, the contents of said letter are definitely improbable and unreasonable. Apart from observing that the signatures found in Ex. D2 and D3 differ from each other, wordings in Ex. D3 are in the nature incriminating himself which a normal man would not have been done. Ex. D3 shows that he has cheated him and no person of an ordinary sense would write a letter like Ex. D3. It is therefore, clear that Ex. D3 is a got up document for the purpose of this case by the accused and no reliance can be placed on the said letter to disbelieve the version of the complainant. So far as the other documents are concerned, it is seen that the accused has produced as many as 26 documents. Nothing prevented the complainant from examining the concerned Manager to indicate that at the time when the cheque was presented there was instruction to stop the payment. In that view of the matter, the defence raised by the accused is an afterthought and the same will not enure to his benefit. I have also gone through the order of learned Magistrate in convicting the accused. In that view of the matter, the defence raised by the accused is an afterthought and the same will not enure to his benefit. I have also gone through the order of learned Magistrate in convicting the accused. I find that the reasoning assigned by the learned Magistrate is in accordance with the settled principles of law whereas, the reasoning given by the learned Sessions Judge in his judgment are not tenable and therefore, the order passed by the learned Sessions Judge deserves to be set aside and the judgment of conviction passed by the learned Magistrate deserves to be confirmed. Hence, the following order: The Judgment dated 17.03.2007 passed by the learned Sessions Judge, Bagalkot is hereby set aside and the judgment of conviction passed by the learned Magistrate in C.C. No. 1260/2002 dated 30.06.2006 is confirmed. However, so far as sentence is concerned, it is seen that the matter relates to the year 2002. Already ten years have passed from the date of issuance of cheques. Hence, I am of the opinion that it is not just to send the accused to custody. Hence, sentence of imprisonment for three months is set aside, in its place the accused-respondent is directed to pay a fine amount of Rs. 1,80,000/-. Out of which, a sum of Rs. 1,75,000/- is directed to be paid to the appellant-complainant. The accused is directed to deposit the fine amount within three months from today. In default of payment of fine, he shall undergo simple imprisonment for six months. The learned Magistrate is directed to enforce the default sentence if the accused does not pay the fine amount within the stipulated time. Appeal is allowed.