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2022 DIGILAW 1444 (KAR)

N. M. v. Dewan VS K. N. Raghavendra Rao

2022-11-08

H.B.PRABHAKARA SASTRY

body2022
ORDER 1. The present petitioner was accused in C.C.No.17851/2006, in the Court of the learned XV Addl.Chief Metropolitan Magistrate, Bengaluru, (hereinafter for brevity referred to as the 'trial Court'). By its judgment dated 22.09.2012, the trial Court convicted the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as 'N.I.Act') and was sentenced accordingly. 2. The summary of the case of the complainant in the trial Court was that the complainant and the accused were acquainted with each other. At the request of accused, in December 2004, the complainant gave him a hand loan of a sum of Rs. 1 lakh, which loan amount the accused had agreed to repay within three months. The accused did not keep up his promise towards the repayment of the loan amount. However, at the demand made by the complainant for the repayment of the loan amount, the accused issued him a cheque bearing No.118254, dated 01.02.2006, drawn on Canara Bank, Hosur Branch, in favour of the complainant for a sum of Rs. 1 lakh. The said cheque when presented for realisation by the complainant through his Banker on 01.02.2006, the same came to be returned with an endorsement 'funds insufficient'. The complainant got issued a legal notice to the accused on 11.02.2006 both under Registered Post Acknowledgement Due and under Certificate of Posting demanding the payment of the cheque amount. The accused gave an untenable reply, but, did not pay the cheque amount which constrained the complainant to institute a criminal case against the accused in the trial Court for the offence punishable under Section 138 of N.I.Act. 3. Since the accused pleaded not guilty, charges were framed against the accused for the alleged offences. 4. The complainant in order to prove his case, got himself examined as PW-1 and got marked nine documents from Exs.P-1 to P-9. On behalf of the accused, the accused got himself examined as DW-1 and got marked documents from Exs.D-1 to D-19. 5. After hearing both side, the trial Court by its impugned judgment dated 22.09.2012, convicted the accused for the offence punishable under Section 138 of N.I.Act and sentenced him accordingly. 6. On behalf of the accused, the accused got himself examined as DW-1 and got marked documents from Exs.D-1 to D-19. 5. After hearing both side, the trial Court by its impugned judgment dated 22.09.2012, convicted the accused for the offence punishable under Section 138 of N.I.Act and sentenced him accordingly. 6. Challenging the said order, the accused has preferred an appeal in Criminal Appeal No.608/2012, before the learned Presiding Officer, Fast Track Court (Sessions)-XI, Bengaluru, (hereinafter for brevity referred to as 'Sessions Judge's Court), which by its judgment dated 19.01.2013, dismissed the appeal by confirming the judgment of conviction passed by the trial Court. It is against these judgments of conviction, the accused has preferred this revision petition. 7. The respondent is being represented by his learned counsel. 8. Records from the trial Court and Sessions Judge's Court pertaining to the matter were called for and the same are placed before the Court. 9. Heard the arguments of learned counsel from both side. Perused the materials placed before this Court. 10. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the trial Court. 11. After hearing the learned counsel from both side, he only point that arises for my consideration is,- 'Whether the impugned judgments suffer from perversity, illegality, impropriety warranting any interference at the hands of this Court'. 12. The learned counsel for the petitioner in his argument firstly submitted that the complainant as PW-1 has not tendered for his further cross-examination by the accused for which he was summoned by allowing the application filed by the accused under Section 311 of Code of Criminal Procedure Code, 1973 (hereinafter for brevity referred to as 'Cr.P.C.'). Further, the complainant himself filed a similar application seeking permission to tender himself for cross-examination by the accused and the said application came to be allowed, still he did not tender himself for cross-examination by the accused. As such, the evidence of PW-1 deserves to be discarded. In such an event, the case of the complainant falls on its own in the absence of his evidence in support of his complaint. He further submitted that on the merits also, the accused has got strong points. In that regard, learned counsel for the petitioner submitted that the accused had no financial need to borrow any amount, much less, Rs. 1 lakh. He further submitted that on the merits also, the accused has got strong points. In that regard, learned counsel for the petitioner submitted that the accused had no financial need to borrow any amount, much less, Rs. 1 lakh. The documents produced by the accused as exhibits would go to show that the wife and children of the accused had sufficient bank balance, so also, the accused. As such, there was no necessity for him to avail any loan. The said evidence of defence was not properly appreciated by the trial Court and the Sessions Judge's Court. He further submitted that as on the date of alleged issuance of cheque i.e., on 31.01.2006 at Bengaluru, the accused was on his duty at Hosur which is demonstrated in Exs.D-1 to D-5. As such, the accused had demonstrated that delivering the said cheque to the complainant on the said day would not arise. This also creates a doubt in the case of the complainant and the accused has successfully rebutted the presumption formed in favour of the complainant. 13. Per contra, learned counsel for the respondent in his argument submitted that the point of PW-1 not tendering himself for further cross-examination by the accused has not been either brought to the notice of the trial Court at the appropriate time by the accused or at least in his Criminal Appeal before the Sessions Judge's Court. As such, he cannot raise the said point for the first time in this revision petition. Learned counsel further submitted that the petitioner has not examined his son and daughter in support of their alleged income and sufficient balance in their bank account. They have not come and stated that their father had no financial necessity to avail any loan from the complainant. He also stated that, admittedly the accused has not produced any documents to show that the cheque in question was issued by him to one Sri Parthasarathy. Admittedly he has not taken any action against the said Sri Parthasarathy to recover alleged cheque from him. As such, his defence that the cheque in question was given to one Sri Parthasarathy was purely an after thought. The learned counsel for the respondent further submitted that, merely because the family members of the accused have some balance in their bank account, it cannot be held that the accused has not borrowed any money from the complainant. As such, his defence that the cheque in question was given to one Sri Parthasarathy was purely an after thought. The learned counsel for the respondent further submitted that, merely because the family members of the accused have some balance in their bank account, it cannot be held that the accused has not borrowed any money from the complainant. He further submitted that the alleged defence of alibi is an after thought and the accused has failed to establish the same. Further, merely looking at some tax invoices, it cannot be inferred that the accused was on duty on 31.01.2006 and he was at Hosur. He further submitted that, assuming for a moment that accused was on duty on the said day, still, Hosur being a very near place to Bengaluru, coming over to Bengaluru either before or after office hours also cannot be ruled out. Further stating that since the trial Court and Sessions Judge's Court have properly appreciated the evidence, the impugned judgments does not warrant any interference by this Court, learned counsel for the respondent prayed to dismiss the petition as devoid of merits. 14. As could be seen from the order sheet maintained by the trial Court, the complainant as PW-1 led his evidence in examination-in-chief by filing an affidavit on the date 18.01.2007 and got himself further examined in-chief, wherein he got marked documents from Exs.P-1 to P-9(a). Later, on 11.04.2007 he was cross-examined in-part from the accused side. His further cross-examination, which was also in-part, was held on 07.12.2007. Lastly, the cross-examination of PW-1 from the accused side took place on 18.02.2008. With this , the evidence of PW-1 got concluded. Later on 01.12.2008, the accused filed an application under Section 311 of Cr.P.C., seeking to recall PW-1 for his further cross-examination from the accused side. After several adjournments, the said application came to be allowed on 10.07.2009 on a cost of Rs. 100/-. The matter was posted again for the cross-examination of PW-1 and adjourned to 23.07.2009. On 23.07.2009, the cost ordered on 10.07.2009 was paid by the accused, however, PW-1 had remained absent on the said day, as such, his cross-examination could not be held on the said day. Thus, the matter was adjourned to 20.08.2009. 100/-. The matter was posted again for the cross-examination of PW-1 and adjourned to 23.07.2009. On 23.07.2009, the cost ordered on 10.07.2009 was paid by the accused, however, PW-1 had remained absent on the said day, as such, his cross-examination could not be held on the said day. Thus, the matter was adjourned to 20.08.2009. On 20.08.2009 and on subsequent adjourned dates i.e., on 22.09.2009, 16.10.2009 and 18.11.2009, PW-1 remained absent, as such, his further cross-examination could not be taken place on those dates. Due to the absence of PW-1 on 18.11.2009, the trial Court took the cross-examination of PW-1 as 'NIL' and posted the matter for arguments and adjourned the case to 25.11.2009. On 25.11.2009, the accused filed a memo seeking to discard the evidence of PW-1, however, the trial Court without passing any order on the said memo, adjourned the matter to 22.12.2009 for the arguments in the case. On 22.12.2009, the complainant filed an application under Section 311 of Cr.P.C., seeking permission to tender himself for further cross-examination from the accused side. The said application came to be allowed on 19.01.2010, but, on a cost of Rs. 200/-. The matter was once again posted for further cross-examination of PW-1 on 08.02.2010. On 08.02.2010 and on the immediate adjourned date, which was on 10.03.2010, once again PW-1 remained absent. The matter was adjourned to 03.05.2010. Due to the leave of the Presiding Officer, the matter was adjourned from 03.05.2010 to 17.05.2010. On 17.05.2010, once again PW-1 remained absent. Thus, imposing a cost of Rs. 200/- upon the complainant, the matter stood adjourned to 02.07.2010. Due to the absence of PW-1, the matter was adjourned from 02.07.2010 to 16.08.2010 on further cost of Rs. 100/- to 27.09.2010 and once again on cost of Rs. 200/-, adjourned to 23.10.2010. Even from 23.10.2010 till 19.07.2012, for seven more hearing dates, PW-1 remained absent and the matter went on adjourning from one date to another date. On 19.07.2012, the case was called in two rounds, but, in both the rounds, PW-1 remained absent. There was no representation from the complainant's side. As such, the matter was again posted for arguments. Thereafter, after hearing the arguments from both side, the trial Court proceeded to pass the impugned judgment of conviction on 22.09.2012. 15. Thus, after allowing IA. On 19.07.2012, the case was called in two rounds, but, in both the rounds, PW-1 remained absent. There was no representation from the complainant's side. As such, the matter was again posted for arguments. Thereafter, after hearing the arguments from both side, the trial Court proceeded to pass the impugned judgment of conviction on 22.09.2012. 15. Thus, after allowing IA. filed under Section 311 of Cr.P.C. filed by the accused on 10.07.2009, till 19.07.2012, when the matter was again listed for arguments, for not less than twenty-two dates of hearing continuously, PW-1 had remained absent and did not tender himself for further cross-examination. As such, the trial Court once again listed the matter for arguments and proceeded to hear the arguments from both side. No doubt, the accused neither in his written argument filed in the Court on 08.08.2012 nor in his memorandum of appeal before the Sessions Judge's Court in Criminal Appeal No.608/2012 mentioned about PW-1 not tendering for his further cross-examination. But, that itself would not disentitle him from taking a contention of PW-1 not tendering himself for his further cross-examination from the accused side and the consequences to be followed in such a situation. That is also because, as observed above, at the earliest point of time when PW-1 did not tender himself for cross-examination even on 25.11.2009, the accused had filed a memo seeking discarding the evidence of PW-1, however, the trial Court did not pass any order on the memo and without considering the request of the accused to discard the evidence of PW-1, has proceeded to pronounce the impugned judgment by considering the evidence led by PW-1 both oral and documentary. It is not necessary that, it is only after parties to the litigation bringing to the notice of the Court about a witness not tendering himself for cross-examination, the Court should consider the consequences of the same. Even in the absence of either of the parties to the litigation bringing to the notice of the Court about any of the witnesses not tendering himself for further cross-examination, it is the duty of the Court to consider the said fact at least when it takes up the evidence of such a witness for its appreciation and analysis while writing the judgment. 16. 16. Thus, the argument of learned counsel for the respondent/complainant that the accused should have brought to the notice of the trial Court about PW-1 not tendering for his further cross-examination and the same would prevent him from taking such a contention at this stage, is not acceptable. In fact, since the consequences of PW-1 (complainant) not tendering himself for further cross-examination from the accused side would be more serious to the interest of the complainant (PW-1) himself, as such, it was for him (PW-1) to ensure that he tenders himself for further cross-examination by the accused. Otherwise, the prejudice that would be caused would be for him rather than to the accused. Since PW-1 being the sole witness for the complainant and he himself failed to tender himself for further cross-examination from the accused side even though sufficient opportunities of not less than twenty-two times were granted to him, the trial Court has rightly proceeded to post the matter for the next stage i.e., for arguments on the main petition, however, the trial Court should have observed the fact of PW-1 not tendering himself for his further cross-examination from the accused side and consequently should have discarded the evidence led by PW-1. When the evidence of PW-1 thus stands discarded, the entire case of the complainant would fall on its own. However, the trial Court committed an error by not noticing that PW-1 did not tender himself for his cross-examination from the accused side, as such, the said evidence ought not to have been considered by it. The said aspect of the trial Court not discarding the evidence of PW-1 was also remained unnoticed before the Sessions Judge's Court in Criminal Appeal No.608/2012. Consequently, like trial Court, the Sessions Judge's Court also accepted the evidence of PW-1 in its entirety and without noticing that PW-1 deprived the accused of subjecting him to further cross-examination for which he was entitled by the order of the trial Court dated 10.07.2009, proceeded to analyse the evidence of PW-1 and DW-1 and passed the impugned judgment. Consequently, like trial Court, the Sessions Judge's Court also accepted the evidence of PW-1 in its entirety and without noticing that PW-1 deprived the accused of subjecting him to further cross-examination for which he was entitled by the order of the trial Court dated 10.07.2009, proceeded to analyse the evidence of PW-1 and DW-1 and passed the impugned judgment. Since while passing the impugned judgments, the trial Court and the Sessions Judge's Court have failed to notice that the evidence of PW-1 ought to have been discarded for he not tendering for his further cross-examination from the accused side, the same loses their value and the analysis of the evidence made by them results in an analysis made of incomplete evidence of PW-1, thus, both the impugned judgments do not sustain. As such, without going into the merits of the case, the revision petition deserves to be allowed and the impugned judgments deserves to be set aside. However, since learned counsel from both side have also addressed their arguments on the merits of the case and since both the impugned judgments are based upon the analysis of the merits of the case, the arguments from both side on the merits of the case are also now being taken up for consideration. 17. The complainant and accused got themselves examined respectively as PW-1 and DW-1 in the trial Court. The complainant in his examination-in-chief filed in the form of affidavit evidence has reiterated the contentions taken up by him in his complaint which he has got marked at Ex.P-1. Apart from stating that the accused who was known person to him had availed a hand loan of a sum of Rs. 1 lakh in December 2004, the witness in his cross-examination has specifically stated that the date of giving such loan to the accused was 10.12.2004. Though the complainant has stated that the accused had executed an on demand Promissory Note and consideration receipt for having received a sum of Rs. 1 lakh, however, for the reasons best known to him, he has not produced those documents and got them marked as exhibits. The witness further stating that towards repayment of the loan, the accused issued him a cheque bearing No.118254, dated 01.02.2006, for a sum of Rs. 1 lakh, however, for the reasons best known to him, he has not produced those documents and got them marked as exhibits. The witness further stating that towards repayment of the loan, the accused issued him a cheque bearing No.118254, dated 01.02.2006, for a sum of Rs. 1 lakh and drawn on Canara Bank, Hosur Branch and the same got dishonoured when presented for realisation for the reason of insufficiency of funds in the account of the accused, got marked the said returned cheque at Ex.P-2 and the Banker's endorsement at Ex.P-3. By producing a office copy of legal notice at Ex.P-5, postal receipt at Ex.P-6, postal acknowledgement card at Ex.P-7, Certificate of Posting receipt at Ex.P-8 and reply to the legal notice at Ex.P-9, the complainant could able to establish that after dishonour of the cheque, he issued a legal notice upon the accused demanding the payment of the cheque amount, however, he received a reply as per Ex.P-9. 18. The accused has admitted that the complainant was known person to him. He has not denied that he is the drawer of the cheque at Ex.P-2 and the said cheque got returned for the reason of insufficiency of funds when presented for realisation by the complainant. He has also not denied the service of notice as per Ex.P-5 upon him and he sending a reply as per Ex.P-9. Thus, the undisputed facts forms a presumption in favour of the complainant under Section 139 of N.I.Act about the existence of legally enforceable debt in his favour. However, the said presumption is rebuttable. Towards rebuttal of the presumption, the accused has taken two defences. The first defence was that the cheque was given by him to one Sri Parthasarathy when he had borrowed a sum of Rs. 15,000/- from him in the year 1998. Even though the said loan amount was repaid by him, but, the said cheque was not returned to him by Parthasarathy, however, the said Parthasarathy had given that cheque to the complainant to present the same, which cheque was misused by the complainant by filling a huge amount in it and presenting the cheque. Suggestions were made to this effect from the accused side to PW-1 in his cross-examination, however, the witness has not admitted the same as true. Suggestions were made to this effect from the accused side to PW-1 in his cross-examination, however, the witness has not admitted the same as true. Further the accused as DW-1 in his examination-in-chief also has reiterated the same in his evidence which was denied from the complainant's side in his cross-examination. 19. The second defence that was taken up by the accused was the denial of the alleged loan transaction. However, the suggestions made to the said effect in the cross-examination of PW-1 was also not admitted as true by him. In addition to the above, the accused has also taken a contention that there was no necessity for him to avail any loan since his family members were earning and they had sufficient bank balance. He also took a contention that since his children have already completed their education, the question of he having any financial necessity to cater to their education, as such, availing of loan did not arise. To substantiate his contention, he got produced the examination admission ticket of one Mr.Ratna Deep Dewan at Ex.D-6, the admission intimation to the Regional Engineering College, Tiruchirapalli of said Ratna Deep Dewan at Ex.D-7, job offer letter to said Ratna Deep Dewan at Maruti Udyog Limited, Gurgaon, at Ex.D-8, the job offer letter to Ms.Rashmi Dewan by Thomson Business Information India Private Limited, Bengaluru, at Ex.D-9 and the bank statements of his family members at Exs.D-10, D-11 and D-13 and the salary slip of son of the accused i.e., Ratna Deep Dewan at Ex.D-12. To show that he had already an immovable property also, he had produced a certified copy of the Sale Deed dated 07.11.2005 at Ex.D-14 and the bank statement of State Bank of Travancore at Ex.D-18. No doubt, a perusal of these documents from Exs.D-6 to D-19 would go to show that the accused had educated his son and his son also secured a job and was earning, however, the mere education of a son and the son earning a decent salary would not itself lead to an inference that the accused had no occasion to avail any loan amount from the complainant. Admittedly, the pay slip at Ex.D-12, bank account statement at Ex.D-11 are all of son of the accused, but, not of the accused. As such also, it cannot be ruled out of any possibility of accused borrowing any loan from the complainant. Admittedly, the pay slip at Ex.D-12, bank account statement at Ex.D-11 are all of son of the accused, but, not of the accused. As such also, it cannot be ruled out of any possibility of accused borrowing any loan from the complainant. Thus, the main point of argument of learned counsel for the petitioner that accused had no financial need to borrow any amount from the complainant is not acceptable. 20. The accused had also taken a contention that, as on the date of the alleged delivery of the cheque on 31.01.2006, he had not been to Bengaluru and that he was working at Hosur, as such, the question of he coming to Bengaluru does not arise. In his support, he has produced his attendance certificate for 10th December 2004 and 31st January 2006 from his alleged employer Deccan Wires & Welding Products (P) Ltd., Hosur, and got it marked at Ex.D-1. He has also produced four invoices of the very same Company at Exs.D-2 to D-5, among which, Ex.D-2 is of the date 10.12.2004 and Exs.D-3, D-4 and D-5 are of the date 31.01.2006 and contended that on all those dates, he was on his duty at Hosur. Merely because the accused has produced some copies of the alleged invoices, it cannot be inferred that those invoices, which are disputed by the complainant, have been established as the one created on the date shown therein by none else than the accused himself. Even otherwise, the said place - Hosur not being far away from Bengaluru where the office of the accused is said to be situated, it is easily possible for the accused to travel from Hosur to Bengaluru either to receive the loan or to deliver the cheque in question. As such also, the oral and documentary evidence of the accused to make out a case of preponderance of probabilities to rebut the presumption formed in favour of the complainant could not be successful in achieving its goal. 21. In addition to the above, though the accused has taken a contention that the cheque was given to one Sri Parthasarathy few years back and that Parthasarathy got the cheque presented through the complainant, but, to substantiate the same, neither the accused has produced any document nor examined said Sri Parthasarathy in his favour. 21. In addition to the above, though the accused has taken a contention that the cheque was given to one Sri Parthasarathy few years back and that Parthasarathy got the cheque presented through the complainant, but, to substantiate the same, neither the accused has produced any document nor examined said Sri Parthasarathy in his favour. Had really the accused availed a loan from Sri Parthasarathy and issued the cheque in question as a security to him, then the accused should have established the same by producing some documents or examining the witnesses on his side. The same was not done by the accused. Moreover, admittedly for several years, the accused has kept quite without taking any action against the said Parthasarathy for alleged withholding of the cheque of the accused by him for no valid reasons. This also creates a doubt in believing the alleged defence of the accused. 22. It is appreciating these aspects in their proper perspective, both the trial Court and the Sessions Judge's Court have held that the complainant has proved the alleged guilt against the accused and that the accused could not able to rebut the presumption formed in favour of the complainant. Accordingly, both the Courts have held the accused guilty of the alleged offence punishable under Section 138 of N.I.Act and confirmed the conviction respectively. However, the impugned judgments passed by the trial Court and the Sessions Judge's Court could have sustained provided the evidence of the complainant as PW-1, who was the sole witness for the complainant, was acceptable for its analysis and its appreciation. Since as observed above, the said witness has failed to tender himself for his further cross-examination from the accused side in spite of giving sufficient opportunities to him and also by virtue of the memo filed by the accused seeking discarding the evidence of PW-1, the trial Court and the Sessions Judge's Court ought not to have considered the evidence of PW-1, in which an event, the finding given by them would have been otherwise. As such, the impugned judgments deserves to be set aside, for which purpose, interference in them is warranted by this Court. 23. Accordingly, I proceed to pass the following order: order [i] The Criminal Revision Petition stands allowed. As such, the impugned judgments deserves to be set aside, for which purpose, interference in them is warranted by this Court. 23. Accordingly, I proceed to pass the following order: order [i] The Criminal Revision Petition stands allowed. [ii] The impugned judgment of conviction and order on sentence passed by the learned XV Addl.Chief Metropolitan Magistrate, Bengaluru City, dated 22.09.2012 in C.C.No.17851/2006, holding the petitioner herein (accused) guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, and the impugned judgment passed by the learned Presiding Officer, Fast Track Court (Sessions)-XI, Bengaluru, dated 19.01.2013, in Criminal Appeal No.608/2012, confirming the judgment of the trial Court, are hereby set aside; [iii] The petitioner (accused) - N.M.V.Dewan, son of N.K.Gurukkal, residing at No.H-10, (Old No.H-95), 78th Cross, New ASTC Hudco, Hosur-635109, is acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. Registry to transmit a copy of this order to both the trial Court as also the Sessions Judge's Court along with their respective records forthwith.