Sri. R Sudhakar vs Anandteerth V Joshi

Karnataka High Court

Sri. R Sudhakar vs Anandteerth V Joshi on 7 May, 2024

                           -1-
                                 CRL.RP No. 859 of 2017


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 07TH DAY OF MAY, 2024
                       BEFORE
        THE HON'BLE MR. JUSTICE S RACHAIAH
   CRIMINAL REVISION PETITION NO. 859 OF 2017
BETWEEN:
   SRI. R. SUDHAKAR
   S/O LATE RAJACHAR
   R/AT # 402, 4TH FLOOR
   HEMADRI RESIDENCY
   OPP. SUGUNA HOSPITAL
   DR. RAJKUMAR ROAD
   RAJAJINAGARA
   BENGALURU - 560 010.
                                          ...PETITIONER

(BY SRI. RAGHAVENDRA S, ADVOCATE)

AND:
   ANANDTEERTH V. JOSHI
   S/O VENKATARAO JOSHI
   AGED ABOUT 37 YEARS
   R/AT #V19, SNEHA, I FLOOR
   II MAIN, 7TH CROSS
   AMARJYOTHI NAGAR
   VIJAYANAGARA
   BENGALURU - 40.
                                         ...RESPONDENT

(BY SRI. A VIJAY KUMAR BHAT, ADVOCATE)

     THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND
SENTENCE AND FINE IMPOSED BY THE XXII ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE, BENGALURU, VIDE
JUDGMENT DATED 22-08-2016 PASSED IN C.C.NO.28235/2014
AND ETC.,

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 20.02.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
                                   -2-
                                               CRL.RP No. 859 of 2017




                                 ORDER

1. This Criminal Revision Petition is filed by the petitioner / accused, being aggrieved by the judgment of conviction and order of sentence dated 22.08.2016 in C.C.No.28235/2014 on the file of XXII Additional Chief Metropolitan Magistrate, Bangalore City and its confirmation judgment and order dated 19.07.2017 in Crl.A.No.1071/2016 on the file of the LXVII Additional City Civil and Sessions Judge, Bengaluru City (CCH.No.68), seeking to set aside the concurrent findings recorded by the Courts below, wherein the petitioner / accused is convicted for the offence under Section 138 of Negotiable Instruments Act (for short 'N.I. Act').

2. The rank of the parties in the Trial Court will be considered henceforth for convenience.

Briefs facts of the case:-

3. It is the case of the complainant that he had entered into an agreement of sale with the accused on 27.05.2013 and paid Rs.7,00,000/- as part payment and the remaining balance had to be paid at the time of execution of the sale deed. The total amount of Rs.35,00,000/- was fixed as sale consideration. Time was stipulated to complete the -3- CRL.RP No. 859 of 2017 construction process, however, the accused did not perform his part of contract and therefore, the complainant demanded the accused to repay the amount by canceling the sale agreement. The accused after agreeing for cancellation of the sale agreement, issued a cheque for the said amount and asked the complainant to present the cheque for encashment.

4. When it was presented for encashment, the cheque came to be dishonoured with a shara as 'funds insufficient'. Thereafter, a legal notice was issued to the accused through RPAD regarding dishonour of cheque. After having received the said notice, the accused issued a reply dated 19.09.2014 by admitting the amount of Rs.7,00,000/- received by him, however, the accused stated in his reply notice that the amount would be returned subject to returning of the original sale agreement. In spite of reply having been received by the complainant, a complaint came to be registered before the Jurisdictional Magistrate.

5. To prove the case of the complainant, he himself examined as PW.1 and got marked 6 documents as Exs.P1 to P6. On the other hand, the accused did not choose to lead any evidence. The Trial Court after appreciating the oral and documentary evidence on record, recorded the conviction of the -4- CRL.RP No. 859 of 2017 accused and the same has been confirmed by the Appellate Court in the appeal filed by the accused. Hence this revision petition.

6. Heard Sri. Raghavendra S, learned counsel for petitioner and Sri. A Vijay Kumar Bhat, learned counsel for the respondent.

7. It is the submission of learned counsel for the petitioner that the liability is admitted by the accused, however, in the reply notice which is marked as Ex.P6, it is stated that the amount would be returned subject to returning of the original sale agreement. However, the complainant did not return the original sale agreement. Hence, the liability would not arise on the cheque.

8. It is further submitted that even though the complainant did not approach the accused after having received the reply notice and returned the original sale agreement, both the Courts have held wrongly that the accused is liable to pay the amount stated in the cheque which appears to be erroneous and not proper. Therefore, the concurrent findings of the Courts below are required to be set aside. Making such submission, learned counsel for petitioner prays to allow the petition. -5- CRL.RP No. 859 of 2017

9. Per contra, learned counsel for the respondent vehemently justified the concurrent findings of conviction and submitted that the issuance of the cheque, signature found on the cheque and also the receipt of the amount are all admitted by the accused, however, the accused insisted the complainant to return the original sale agreement which may not be proper and appropriate. Therefore, the revision petition filed by the petitioner deserves to be dismissed.

10. After having heard the learned counsel for the respective parties, it is necessary to state the facts in brief along with evidence of PW.1. The averments of the complaint which disclose that the accused had agreed to construct the house to the complainant and entered into an agreement of sale. The total sale consideration was fixed at Rs.35,00,000/-. The complainant paid Rs.7,00,000/- as a part payment and the remaining balance had to be paid at the time of execution of the sale deed. The accused had agreed to complete the construction within six months, however, he went on postponing to another six months. Even though sufficient time was given to the accused, the complainant was not allowed to visit the site of construction nor was allowed to inspect the quality of -6- CRL.RP No. 859 of 2017 construction. Being unhappy with the said development, the complainant decided to call off the transaction.

11. Accordingly, the said transaction was called off and the accused issued cheque in a sum of Rs.7,00,000/- as a part of cancellation of sale agreement. When the cheque was presented for encashment, it came to be dishonoured with a shara as 'funds insufficient' and it was brought to the knowledge of the accused by way of issuance of legal notice. The accused replied to the said notice stating that the original sale agreement has to be returned and the amount would be paid to the complainant.

12. It is settled law that, of course, the accused has to rebut the presumption by leading cogent evidence, however, in this case, the accused except issuance of reply notice, neither cross-examined the complainant nor chosen to lead any evidence. On perusal of the reply notice, it can be inferred that the accused had admitted the transaction and also admitted that he had to repay the amount of Rs.7,00,000/- to the complainant. Further, he admitted that the sale agreement was executed between himself and the complainant has been cancelled. According to accused, he was ready to make payment only on returning the original sale agreement. -7- CRL.RP No. 859 of 2017 However, the complainant did not return the original sale agreement nor approached the accused for further transactions.

13. On conjoint reading of the reply notice and evidence of PW.1, inference could be drawn that mere issuance of the cheque by admitting the liability would not sufficient to fasten the liability on the accused. In fact, the complainant must have acted upon the reply notice issued by the accused. In case if the complainant had approached the accused after having received the reply notice, probably the matter would have been settled between themselves.

14. Be that as it may, the accused admitted the transaction i.e., the execution of the sale agreement and its cancellation and also issuance of the cheque pursuant to cancellation of the sale agreement. It is needless to say that admitted fact need not be proved. In such a way the accused is held liable to be convicted for the offence under Section 138 of N.I. Act.

15. After having perused the findings of the Courts below, I am of the considered opinion that both the Courts have not committed any error in recording the conviction. Hence, I decline to interfere with the said findings. Therefore, this -8- CRL.RP No. 859 of 2017 revision petition deserves to be dismissed and ordered accordingly.

Sd/-

JUDGE Bss