IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE Mr. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.49/2015
BETWEEN:
D. GOVINDAIAH
S/O. LATE THIMMAIAH
AGED 48 YEARS
R/AT #42, 1ST MAIN, 9TH CROSS
OM SHAKTHI TEMPLE ROAD
BEHIND GOVT. HOSPITAL
ELECTRONIC CITY POST
BANGALORE. ... PETITIONER
(BY SRI. BRYEN SEBASTIAN, ADV.,
FOR SRI. JOSE. SEBASTIAN, ADV., )
AND:
P. SREENIVASA
S/O. PAPIRAPPA
AGED ABOUT 32 YEARS
R/A # 888, HOSA ROAD
BEHIND GOVT. HOSPITAL
ELECTRONIC CITY POST
BANGALORE. ...RESPONDENT
(BY SRI. V. ANAND, ADV.,)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION. 397 READ WITH 401 OF CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
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AND SENTENCE PASSED BY THE 13TH ACMM, BANGALORE
IN C.C.NO.19/2009 DATED 19.12.2013 AND IN CRL.A.
NO.89/14 BY THE FAST TRACK (SESSIONS) JUDGE -V,
BANGALORE CITY DATED 11.11.14 AND ETC.,.
THIS CRIMINAL REVISION PETITION COMING ON
FOR FINAL HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The accused is in revision challenging the order passed in CC No.19/2009 on the file of XIII Addl. Chief Metropolitan Magistrate, Bengaluru dated 19.12.2013 whereby the accused was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act which was confirmed in Criminal Appeal No.89/2014 on the file of the Fast Track (Sessions) Judge- V, Bengaluru City by judgment dated 11.11.2014.
2. The parties are referred to as the complainant and the accused as per their rank before the Trial Court for the sake of convenience.
3. Brief facts which are necessary for disposal of the Revision Petition are as under:
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The Complainant filed a private complaint u/s.200 Cr.PC., alleging that the accused has committed an offence u/s.138 of the Negotiable Instruments Act. It is further contended that accused has borrowed a sum of Rs.1,75,000/- from the complainant on 15.5.2008 and towards the discharge of the said loan amount, accused issued a cheque for Rs.1,75,000/- on 15.7.2008 which on presentation came to be dishonoured with an endorsement "insufficient funds" thereafter, the complainant issued statutory notice and the notice issued through RPAD returned with an endorsement "accused has not claimed notice" which necessitated the complainant to file a complaint seeking necessary action against the accused.
4. On presentation of the complaint, learned Magistrate took cognizance and after completing the formalities issued summons to the accused and the accused appeared before the Court and pleaded not guilty and as such, trial was held.
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5. In order to prove the complaint averments, complainant got himself examined as PW-1 and relied upon documentary evidence which were exhibited and marked as Exhibits P-1 to P-8. Thereafter, the accused statement as contemplated u/s.313 Cr.PC., was recorded and accused also got examined himself as DW-1 and relied on 13 documents which were exhibited and marked as Exs.D-1 to D-13.
6. Learned Magistrate on cumulative consideration of the materials on record passed an order of conviction for the offence punishable under Section 138 of Negotiable Instruments Act and ordered to pay fine of Rs.1,80,000/- with a default sentence of six months. Out of the fine amount, a sum of Rs.1,75,000/- was ordered to be paid as compensation to the complainant as contemplated u/s.357 Cr.PC., and balance sum of Rs.5,000/- was ordered to be remitted to the State as fine.
7. Being aggrieved by the same, accused preferred an appeal in Criminal Appeal No.89/2014 on the file of the 5 Fast Track (Sessions) Judge-V, Bengaluru City. Learned Judge in the first appellate court after securing the records, heard the parties in detail by re-appreciating the entire materials on record. After thorough consideration of the entire materials on record, the learned first appellate court confirmed the judgment of the learned Magistrate by dismissing the appeal. It is those judgments which are the subject matter of this Revision Petition.
8. The learned counsel for the Revision Petitioner Sri. Bryen Sebastian, submitted that issuance of cheque is not in dispute. But the amount which was paid by the accused outside the court has not been properly accounted and blank cheque which was issued by the accused to the complainant has been misused which has not been properly appreciated by both the courts. He also contends that the defence evidence has not been properly taken note of by the learned Magistrate so also filing of the original suit seeking for return of the cheques. He also contends that notice has not been served on the accused 6 and therefore, there is no proper compliance of Section 138B of the Negotiable Instruments Act and thus sought for allowing the Revision Petition. He also contends that the evidence placed by the complainant alone is taken note of by the learned Magistrate and the defence evidence has been totally ignored which resulted in miscarriage of justice. He also contends that the first appellate court without re-appreciating the materials on record blindly accepted the reasons assigned by the learned Magistrate while dismissing the appeal of the Revision Petition and thus sought for allowing the Revision Petition.
9. Per contra, learned counsel representing the complainant-respondent supported the impugned judgments and submitted that the original suit filed by the accused seeking return of the cheque came to be dismissed and further the theory put forth by the accused that complainant took a blank cheque and signed blank paper is not properly proved by the accused and therefore, the finding recorded by the learned Magistrate and 7 confirmed by the first appellate court is based on sound reasons and sought for dismissal.
10. In view of the rival contentions following point would arise for consideration:
"Whether the finding recorded by the learned Magistrate that accused has committed an offence u/s.138 of the Negotiable Instruments Act and confirmed by the first appellate court in Criminal Appeal No.89/2014 suffers from patent defect, error of jurisdiction or legal infirmity?
11. Answer to the above point is in the Negative for the following reasons:
12. In the case on hand, issuance of cheque at Ex.P1 and the signature found on cheque at Ex.Pl(a) are not in dispute. The perusal of cross examination of the complainant would depict that transaction is also admitted but accused has taken a plea that he has made some payments outside the court which has not been properly accounted by the complainant. It is also contended that 8 the complainant obtained blank cheque and also obtained signature on a blank paper, which has been misused by the complainant. In this regard, a suit was also filed by the accused against the complainant in OS No.26393/2008. In other words what is to be impressed upon by the learned counsel for the Revision Petitioner is that though monetary transaction between the complainant and the accused has admitted, the complainant misused the cheque issued by the accused to foist a false case against the accused. It is pertinent to note that in the cross examination of DW-1, it is elicited that accused is acquainted with the complainant from the past 20 years. He also admits that on 12.12.2005 he had borrowed a sum of Rs.65,000/- and on 23.12.2005 he had borrowed a sum of Rs.45,000/- for the purpose of construction of his house. These answers in the cross examination would clearly establish that there was monetary transaction between the complainant and the accused. It is also pertinent to note that accused is a watchman in State Bank of India. Though he admits that 9 he had paid a sum of Rs.2,000/- he has got acknowledgement from the complainant in this regard, but no such acknowledgement is filed by the accused before the Court. When once the issuance of cheque and signature therein is admitted by the accused and necessary documentary evidence is placed by the complainant having regard to the fact that there was a monetary transaction, admittedly, there was a monetary transaction between the complainant and the accused. The learned Magistrate was justified in holding that the complainant has discharged the initial burden cast on the complainant has been properly discharged and accused failed to rebut the presumption available to the complainant u/s.139 of the Negotiable Instruments Act.
13. In other words, the presumption available to the complainant u/s.139 of the NI Act coupled with the presumption already available u/s.118 of the NI Act is not rebutted by placing a cogent evidence on record by the accused. In such circumstances any other grounds urged 10 by the learned counsel for the Revision Petitioner to hold that the judgments of the Trial Court as well as the first Appellate Court is suffering from grave perversity or the learned counsel is not able to point out any error apparent on record which calls for interference by this court in the revisional jurisdiction. In such circumstances, the point is answered in the Negative.
14. It is also pertinent to note that the suit filed by the accused seeking direction to the complainant to return the cheque and the alleged stamp paper is also dismissed after contest.
15. Though there are suggestions to the complainant that the accused has made payments which has been acknowledged by the complainant, the said plea was not proved by the accused by placing atleast plausible evidence on record. When such is the factual aspects, the finding recorded by the learned Magistrate that the accused has failed to establish all ingredients to attract Section 138 of the Negotiable Instruments Act is well 11 founded and does not suffer from any patent defect on record nor there is error of jurisdiction or legal infirmity in the impugned judgment. The same has been properly re- appreciated by the learned Judge in the first appellate court. Statutory notice which is issued through RPAD returned with an endorsement "not claimed" which is a deemed service.
16. Therefore, the plea that there was no notice of dishonor of cheque and therefore there is no offence committed by the complainant cannot also be countenanced. No other point is urged by the learned counsel for the Revision Petitioner either to hold that the impugned judgments are suffering from legal infirmity or having patent defects on record or passed with improper exercise of jurisdiction. Accordingly, the point is answered and following order is passed.
17. The Revision Petition sans merit and therefore dismissed. However, having regard to the prevailing 12 pandemic COVID 19 situation, the accused is granted time till 30th June, 2021 to pay the amount.
Ordered accordingly.
Sd/-
JUDGE PL*