Bangalore District Court/ Sri Chandramouli vs S/O.Late Shivabasappa on 20 June, 2020IN THE COURT OF THE LXI ADDL. CITY CIVIL AND\n     SESSIONS JUDGE, BENGALURU CITY (CCH-62)\n\n            Dated this the 20 th day of June, 2020\n\n                      PRESENT :-\n\n             Sri S.R.MANIKYA, B.Sc., LL.B.,\n         LXI Addl. City Civil & Sessions Judge,\n                    Bangalore, (CCH-62)\n\n             Criminal Appeal No.750/2016\n\n    Appellant /       Sri Chandramouli\n    Accused:          S/o.Late Shivabasappa\n                      Aged about 54 years\n                      R/a. No.330, (New 3380)\n                      3rd cross, 11th main, A1 Block\n                      Vijayanagara 2nd Stage\n                      Mysore-570 017.\n\n                      (By Sri.RDK, Adv.)\n\n                               V/s.\n    Respondent /      Dr.B.N.Ramesh\n    Complainant:      S/o.Dr.B.M.Narayana\n                      Aged about 60 years\n                      R/a.No.3336, Sruthi Nilaya\n                      First 'B' Cross\n                      First 'A' Main, Koreamangala\n                      8th Block, Bangalore-95.\n\n                      (By Sri.P.M., Adv.)\n\n                       JUDGMENTThis is an appeal preferred against the judgment passed\nby the learned XX ACMM, Bengaluru wherein the learned X\nACMM, Bengaluru has convicted the accused in C.C. No.\n14821/2014 dated 03.05.2016 and convicted the accused for2                Crl.A. No.750/2016an offence punishable underSection 138of N.I. Act and\nsentenced him to pay fine of Rs.4,50,000/- and ordered for\ncompensation of Rs.4,40,000/- to the complainant and\nRs.10,000/- to be paid to the State as fine amount.2. To avoid confusion, the parties are referred to as\ncomplainant and accused as per their ranks in the Court\nbelow.3. The brief facts of the complainants' case is that;\n      The complainant and accused are known to each other\nand as the accused was the real estate agent he was\nintroduced to the complainant and he has promised to get a\nsite registered infavour of the complainant and for that\npurpose he has requested the complainant to pay the\namount of Rs.3,40,000/- as advance payment towards the\npurchase of site and agreed to execute the sale deed with\nrespect to the site after fixing the consideration of the site.\nBut inspite of lapse of time, the accused has not complied\nwith the agreed terms between the complainant and the\naccused and lastly when the complainant has requested to\nrepay the amount, the accused issued a cheque assuring\nthat the same will be honoured when it is presented for\nencashment. But when the cheque was presented on\n17.10.2013, the same was dishonoured with a shara of\ninsufficient funds and though notice was issued to the\naccused since he has not repaid the amount, the complaint\nwas filed.3                Crl.A. No.750/20164. Inorder to prove the case of the complainant,\ncomplainant was examined as PW-1 and got marked Ex.P.1\nto Ex.P.6 and no defence evidence has been adduced and\nafter conclusion of complaint evidence learned trial judge has\npassed the conviction judgment holding that the accused has\ncommitted the offence punishable underSection 138of N.I.\nAct.5. Appellant urges amongst other grounds contending\nthat the judgment passed by the trial court is manifestly\nerroneous to the facts and circumstances of the case. The\nlearned trial judge has wrongly analyzed the facts and\ncircumstances of the case and given conviction on wrong\nnotion and after examination of PW-1 there was no sufficient\nopportunity provided to cross-examine PW-1 and also to\nadduce evidence on behalf of the accused to prove the\ndefence. The learned trial judge erred in dispensing the\nrecording of statement underSection 313of Cr.P.C., The\nlearned trial judge has not at all considered the fact of\nappellant suffered heart attack and he was operated in\nVikram Hospital, Mysuru and he was taken treatment till\nJanuary 2016 and thereafter in the month of February 2016,\nappellants daughter met with accident and she was undertreatment in Apolo Hospital , Mysuru. Hence, he was unable\nto appear before the Court and produce documents before\nthe court and establish his defence. The appellant may be\npermitted to adduce additional grounds and to produce4                Crl.A. No.750/2016document. When a sufficient opportunity has not been given\neither for cross-examination and also for leading evidence of\naccused, the judgment passed by the trial court will have to\nbe considered as erroneous judgment and interference of\nappellate court is a necessary. Hence, this appeal and prayed\nto interfere with the judgment passed by the trial court and\nto allow the petition.6. Since, the appellant and Respondent remained\nabsent, argument was taken as heard and posted for\njudgment. In the mean while, the respondent counsel\nsubmits that the joint memo was filed with regard to the\ncompromise and same may be considered and order may be\npassed on that joint memo.7. Though the joint memo has been filed by the\nappellant in this case after filing of the joint memo the\naccused has not complied the joint memo and not paid the\namount to the respondent as agreed. According to the terms\nof the joint memo, the accused has to pay a sum of\nRs.3,30,000/- and it was agreed to pay the amount on or\nbefore 04.10.2018 and it was also agreed between the parties\nthat Rs.90,000/- which is in deposit before the trial court will\nhave to be paid to the complainant. For the joint memo both\nthe parties have signed and both the counsels have also\nsubmitted their signature to the joint memo. But, later on the\naccused has gone back with the terms of the joint memo and\nhence now it has become necessary to pass judgment on5                 Crl.A. No.750/2016merits of the case. Hence, now I have to raise points for\nconsideration before the court.i.        Whether the appellant proves that there was no\n                     existing liability as on the date of issue of\n                     cheque?ii.       Whether the appellant has rebutted the\n                     presumption drawn underSection 139of N.I.\n                     Act?iii.      Whether the judgment passed by the trial court\n                     is erroneous and calls for interference by this\n                     court?iv.       What Order?8.          My findings on the above points are as under:Point No.i & ii : In the negative\n\n                  Point No.iii : Partly affirmative only with respect\n                                to the sentence passed and amount of\n                                fine imposed by the trial court.Point No.iv : As per the final order for the following:R E A SON S9.          Point No.i & ii:- Now, in this case the appellant\nhas took up a specific contention that since there was no\nliability as on the date of issue of cheque and the cheque was\nissued as an advance payment towards the purchase of site\nat   Devanahalli         and   upon    failure   to   furnish   relevant\ndocuments and failed to execute the sale deed he has\npromised to repay the amount within seven months and for6                Crl.A. No.750/2016that purpose the cheque was issued and the same was\ndishonoured with a shara of insufficient funds. Though the\naccused has contended in the appeal memorandum that\nthere    was   no   ample   opportunity   provided   for   cross-\nexamination of PW-1 and dispensed with the statement to be\nrecorded underSection 313of Cr.P.C., the judgment passed\nis highly erroneous and the defence of the accused has not at\nall accepted. But by perusing the order sheet it can be\nnoticed that there was sufficient opportunity provided for the\nappellant to cross-examine PW-1. But he has not availed that\nopportunity.10. Though at the inception of the appeal memorandum\nhe has specifically denied the liability and issue of cheque,\nbut later on he has admitted the liability and filed the joint\nmemo admitting to repay the amount in installments. By\nvirtue of the filing of joint memo he has admitted his liability\nto the extent of cheque amount and also agreed to pay within\na certain period. When such being the case, the question of\nconsidering the non existing liability of the accused as\ncontended in the appeal memorandum would not arise at all.\nFurther, when the joint memo is filed admitting the liability\nthe question of rebutting the presumption drawn in favour of\nthe complainant would also does not arise. Under such\ncircumstances I have no hesitation to answer point No.i and\nii in negative.7                Crl.A. No.750/201611.   Point No.iii:-    Now, in this case the cheque\namount was Rs.3,40,000/-. The trial judge has come to the\nconclusion that the accused has committed the offence underSection 138of N.I. Act. But the learned trial judge has\nimposed fine of Rs.4,50,000/- for which no reason has been\nassigned. According to the well established principles of law if\nan offence underSection 138has been established either the\ncheque amount will have to be imposed as fine or double the\ncheque amount will have to be imposed as fine. Though at the\ninspection of the appeal the appellant has denied the liability\nand issue of cheque but in a subsequent development the\nappellant and respondent counsels have filed a joint memo\nwherein the appellant has specifically agreed to pay an\namount of Rs.3,40,000/- which is the cheque amount on\nvarious dates and accordingly the joint memo was filed which\nwas recorded and the same was posted for payment. Since,\nthe accused has not complied the terms of the joint memo and\nnot paid the amount as agreed now it has become necessary\nto pass the judgment on merits since the appellant has not\nturned up after filing of the joint memo and not paid the\namount. As per well established principles of law the criminal\nappeal cannot be dismissed for non prosecution, hence the\nappeal has to be disposed on merits. Hence, I have considered\nthe point No.i and ii in dispose of the appeal on merits and\naccordingly on merits it is disposed off. But the agreed\namount and the cheque amount is only Rs.3,40,000/- hence\nfine amount has to be imposed to the extent of cheque\namount. But the learned trial judge has passed an order to8                Crl.A. No.750/2016pay fine of Rs.4,50,000/- for which no reason has been\nassigned. Accordingly to the well established principles of law\nif an offence underSection 138has been established either\nthe cheque amount will have to be imposed as fine or double\nthe cheque amount will have to be imposed as fine. Though at\nthe inception of the appeal the appellant has denied the\nliability and issue of cheque, but in a subsequent development\nthe appellant and respondent and their counsels have filed a\njoint memo wherein the appellant has specifically agreed to\npay an amount of Rs.3,40,000/- which is the cheque amount\non various dates and accordingly the joint memo was filed\nwhich was recorded and the same was posted for payment.\nSince, the accused has not complied the terms of the joint\nmemo and not paid the amount as agreed now it has become\nnecessary to pass the judgment on merits since the appellant\nhas not turned up after filing of the joint memo and not paid\nthe amount. As per well established principles of law the\ncriminal appeal cannot be dismissed for non prosecution,\nhence the appeal has to be disposed on merits. Hence, I have\nconsidered the point No.i and ii in dispose of the appeal on\nmerits and accordingly on merits it is dispoed off. But the\nagreed amount and the cheque amount is only Rs.3,40,000/-\nhence fine amount has to be imposed to the extent of cheque\namount. But the learned trial judge has passed an order to\npay fine of Rs.4,50,000/- for which no reason has been\nassigned. Hence, the same is liable to be set aside by partly\nallowing the appeal with respect to the sentence passed by the\ntrial court. Hence, I have no hesitation to answer point No.iii9                   Crl.A. No.750/2016in partly affirmative only with respect to fine imposed to the\nextent of Rs.4,50,000/-.12.    POINT        No.4:-    Having     regard     to   my     above\nobservations and finding on point No.i to iii, I proceed to pass\nthe following:-OR D E R\n\n                    The      appeal       preferred     by     the\n             appellant/accused underSec.374(3)of Cr.PC\n             is hereby partly allowed with respect to the\n             sentence passed by the trial court. No order\n             as to costs.The conviction order passed by the trial\n             court for an offence punishable underSection\n             138of N.I. Act is hereby confirmed and\n             consequently the accused is directed to pay a\n             sum of Rs.3,50,000/- as a fine out of that\n             Rs.3,40,000/- is to be paid to the complainant\n             as a compensation and Rs.10,000/- to be paid\n             to the state.Consequently, the judgment passed by\n             the trial Court is modified as stated above.Send back the LCR with the copy of this\n             judgment to the Court below forthwith.\n(Dictated to the stenographer on the computer, corrected and then pronounced\nby me in the open Court on this the 20 th day of June, 2020).(S.R.MANIKYA)\n                                 LXI Addl. City Civil & Sessions Judge,\n                                            Bangalore City.10   Crl.A. No.750/201611               Crl.A. No.750/2016Judgment pronounced in\n    the Open Court (vide separate\n    order)\n               O R DE R\n\n       The appeal preferred by the\n    appellant/accused u/Sec.374(3)of Cr.P.C is hereby partly allowed\n    with respect to the sentence\n    passed by the trial court. No\n    order as to costs.The conviction order passed\n    by the trial court for an offence\n    punishable underSection 138of\n    N.I. Act is hereby confirmed and\n    consequently the accused is\n    directed to pay a sum of\n    Rs.3,50,000/- as a fine out of\n    that Rs.3,40,000/- is to be paid\n    to   the    complainant    as   a\n    compensation and Rs.10,000/-to be paid to the state.Consequently, the judgment\n    passed by the trial Court is\n    modified as stated above.Send back the LCR with the\n    copy of this judgment to the\n    Court below forthwith.LXI Addl. City Civil & Sessions Judge,\n       Bengaluru City.12   Crl.A. No.750/2016