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2023 DIGILAW 170 (KAR)

Lily Joseph v. K. Chandrashekar

2023-02-01

R.NATARAJ

body2023
JUDGMENT/ORDER 1. This revision petition is filed by the accused challenging the judgment of conviction dtd. 4/1/2013 passed by the XXII Additional Chief Metropolitan Magistrate and XXIV Additional Small Causes Judge, Bengaluru City in C.C.No.17839/2004 convicting her for the offence punishable under Sec. 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act, 1881' for short) and the consequent sentence to pay fine of Rs.15, 30, 000.00. The petitioner has also assailed the judgment dtd. 11/6/2014 passed by the Presiding Officer, Fast Track Court (Sessions)-XI, Bengaluru in Crl.A.No.129/2013, by which, the Sessions Court upheld the judgment of conviction. 2. The records disclose that the respondent claimed that he had advanced a hand loan of Rs.15, 00, 000.00 to the petitioner to meet an emergency. The respondent claimed that despite several demands, the petitioner failed to return the amount. Thereafter, the petitioner passed on three cheques for Rs.5, 00, 000.00 each, all drawn on State Bank of India, Basaveshwarnagar Branch, Bengaluru. The said three cheques when presented for encashment, returned unpaid with the endorsement 'funds insufficient'. The respondent caused a notice of demand, which was duly served on the petitioner, but he neither replied to the notice nor repaid the amount payable under the cheque. The respondent therefore initiated prosecution of the petitioner for the offence punishable under Sec. 138 of NI Act, 1881. The process in the case was served on the petitioner, who appeared before the Court and was released on bail. His plea was recorded and he pleaded not guilty and claimed to be tried. The respondent was examined as PW.1 and he marked Exs.P1 to P10. The petitioner was examined as DW.1 and she marked Exs.D1 to D6. During the course of the proceedings, the petitioner filed an application for comparison of her signatures found on the cheques at Exs.P2 to 4 for forensic examination. The said application was allowed and the admitted signature as well as the disputed signatures on the cheques were referred for forensic examination. However, for reasons that were beyond the control of the trial Court, no report was secured. 3. The trial Court based on the oral and documentary evidence held that the petitioner/accused though claimed that she had lodged a complaint with the bank and the Police about the loss of the cheques in question, did not place any authentic material to establish it. 3. The trial Court based on the oral and documentary evidence held that the petitioner/accused though claimed that she had lodged a complaint with the bank and the Police about the loss of the cheques in question, did not place any authentic material to establish it. Ex.D6 which was a letter allegedly addressed by the petitioner to the bank was not proved in accordance with law as the postal acknowledgement at Ex.D4 did not relate to the parcel bearing No.5525 found in Ex.D3. It also held that the letter at Ex.D6 though dtd. 26/6/2004, was allegedly sent by registered post on 29/6/2004, which was much prior to the dates mentioned on the cheques i.e., 30/6/2004, 10/7/2004 and 20/7/2004. The trial Court therefore held that the petitioner even after being notified of the dishonour of the cheques in terms of the notice of demand at Ex.P10, failed to reply to the notice and thus, held that the defence of the petitioner was not probable. The trial Court also noticed the evidence of the petitioner who claimed that she came to know about the loss of her cheques only when she received the summons from the Court. Therefore, the trial Court held that the evidence of DW.1 did not corroborate Exs.D3 to D6 which were the notice sent to the bank intimating the loss of the cheques. Therefore, trial Court held that the defence adopted of the petitioner was an after thought and hence, held that the respondent had proved that the petitioner has committed an offence punishable under Sec. 138 of the NI Act, 1881 and consequently, convicted her for the said offence and sentenced her to pay fine of Rs.15, 30, 000.00. An appeal filed by the petitioner before the Appellate Court in Crl.A.No.129/2013 was also dismissed. 4. Being aggrieved by the same, the present revision petition is filed. 5. Learned counsel for the petitioner submitted that the petitioner had throughout disputed her signatures found on Exs.P2 to P4. Therefore, he submitted that there was no presumption attached to these cheques and it was incumbent upon the respondent to prove the transaction in question. He further submitted that an attempt made by the petitioner for a comparison of the signatures found on Exs.P2 to P4 with her admitted signatures was though entertained by the trial Court, was not followed up. He further submitted that an attempt made by the petitioner for a comparison of the signatures found on Exs.P2 to P4 with her admitted signatures was though entertained by the trial Court, was not followed up. He submitted that the petitioner did pay Rs.5, 515.00 being the expenses for comparison of the signatures, however, the trial Court failed to secure the report. He further contended that the signatures of the petitioner found on Exs.P2 to P4 did not correspond to the signatures of the petitioner found in her plea as well as in her statement under Sec. 313 of Cr.P.C. and also her vakalath and her deposition. He therefore contended that the impugned judgment of conviction passed by the trial Court warrants interference. 6. Learned counsel for the respondent on the other hand submitted that the petitioner failed to reply to the notice of demand. He submitted that the petitioner had suggested to the respondent in his cross-examination that the cheques in question were unlawfully taken away by the brother of the respondent-Mr.Hari. He contended that the petitioner in her cross-examination claimed that these cheques were meant to be used for paying electricity bill and that the same were lost. He therefore submitted that if the cheques were meant to pay electricity bills, then the petitioner ought to have entered the name of the electricity supply company and could not have kept it blank. Even otherwise he submitted that the petitioner has failed to establish how these cheques reached the respondent. He further contended that the signatures of the petitioner found in her affidavit evidence varied from the signature found in her statement under Sec. 313 of Cr.P.C. as well as at the time of recording of plea. He therefore contends that the accused was signing differently at different time and trial Court had considered all these aspects and had rightly held that the defence of the petitioner was moonshine and improbable. 7. I have considered the submission made by the learned counsel for the petitioner as well as the learned counsel for the respondent. 8. The Court trying an offence punishable under Sec. 138 of NI Act, 1881, has to try it summarily. 7. I have considered the submission made by the learned counsel for the petitioner as well as the learned counsel for the respondent. 8. The Court trying an offence punishable under Sec. 138 of NI Act, 1881, has to try it summarily. Sec. 143 of the NI Act, 1881 provides that if the Magistrate feels during the course of such trial that it is undesirable to try the case summarily, then the Magistrate may after hearing the parties record an order to that effect and thereafter, recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Court. An application under Sec. 145(2) of the NI Act, 1881 may be entertained by the Court, based upon the defence set out by the accused. In the case on hand, the petitioner/accused had consistently claimed that she did not affix the signatures found on Exs.P2 to P4. Truly, the signature on Exs.P2 to P4 did not correspond to her signature in her vakalath, plea, deposition sheet etc. The trial Court too even after allowing a forensic examination of the signatures on the cheques in question, did not follow it up by getting the same examined from a professional, if it was impossible to get a report from the Forensic Science Laboratory. Consequently, the presumption under Sec. 139 of the NI Act, 1881 could not be drawn. It was for the respondent to establish that the cheques in question were drawn by the petitioner towards discharge of a debt. In the present case, the respondent did nothing except placing on record the cheques and the memo of dishonour of the cheques and a notice of demand. He made no effort to establish the transaction between the petitioner and the respondent. The trial Court has returned a finding of guilt of the accused based on an assumption that the accused failed to reply to the notice of demand though there was no stipulation under Sec. 138 of NI Act, 1881 that a default to reply to a notice, would entail any consequence, much less an adverse inference that the accused admitted the claim made in such notice of demand. 9. 9. Having regard to the above, this Court considers it appropriate to direct the trial Court to reconsider the case and rehear the parties after getting the forensic report of the signatures on the cheques in question by comparing it with the admitted signature found in the records of the bank. The judgment of conviction and the order of sentence passed by the trial Court therefore deserves to be interfered with. 10. In that view of the matter, this revision petition is allowed and the impugned judgment of conviction and the order of sentence dtd. 4/1/2013 passed by the XXII Additional Chief Metropolitan Magistrate and XXIV Additional Small Causes Judge, Bengaluru City in C.C.No.17839/2004 and the judgment dtd. 11/6/2014 passed by the Presiding Officer, Fast Track Court (Sessions)-XI, Bengaluru in Crl.A.No.129/2013 are set aside. The case is remitted back to the trial Court and the party shall appear before the trial Court on 28/2/2023. The trial Court is directed to secure the admitted signatures of the petitioner from the drawer bank and thereafter, send it for comparison to an expert as provided under Sec. 45 of the Evidence Act, 1872 and thereafter, dispose off the case in accordance with law. In the event of the trial Court holding that the petitioner is guilty of the offence punishable under Sec. 138 of NI Act, 1881 and in the event of it convicting her for the said offence, it shall take into consideration, the passage of time in pursuing this proceedings, while imposing a sentence, the trial Court shall adequately compensate the respondent by imposing twice the cheque amount as fine.