Sri S Kantharaju vs M/S Laxmi Financiers
2021 Latest Caselaw 1910 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 17TH DAY OF APRIL 2021

                           BEFORE

THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

  CRIMINAL REVISION PETITION No.1168 OF 2015

BETWEEN:

Sri. S. Kantharaju,
S/o. Srinivasan
Age 47 years,
C/o. M/s. J.K. Agro Products
No.170, Hegganahalli,
Karimsab Layout,
Bangalore - 560091.
                                                   ..Petitioner
(By Sri. N. Suresha, Advocate)

AND:

M/s. Laxmi Financiers
Lakshmi complex,
Devaiah Park
Srirampuram
Bangalore - 560021.
                                                   .. Respondent
(By Sri. R.B. Sadasivappa, Advocate)
                                ****
      This Criminal Revision Petition is filed under Section 397
read with Section 401 of Cr.P.C. praying to call for the entire
records and set aside the order dated 10-09-2015 in Criminal
Appeal No.1244/2014 passed by the LXIII Additional City Civil
and Sessions Judge, Bangalore City (CCH-64), in confirming the
judgment and order on sentence passed by the XIII Additional
Chief Metropolitan Magistrate, Bangalore in C.C.No.15991/2011
dated 14-10-2014, by allowing this revision petition, in the
interest of justice and equity.
                                                       Crl.R.P.No.1168/2015
                                     2


      This Criminal Revision Petition coming on for Final Hearing,
through Physical Hearing/Video Conferencing Hearing this day,
the Court made the following:

                              ORDER

The present petitioner as the accused was tried by the

Court of the learned XIII Additional Chief Metropolitan

Magistrate, Bangalore (hereinafter for brevity referred to as the

"Trial Court"), in C.C.No.15991/2011 for the offence punishable

under Section 138 of the Negotiable Instruments Act, 1881

(hereinafter for brevity referred to as the "N.I. Act") and was

convicted for the said offence by its judgment of conviction and

order on sentence dated 14-10-2014.

Aggrieved by the same, the accused preferred a Criminal

Appeal in the Court of the learned LXIII Additional City Civil and

Sessions Judge, Bangalore City (CCH-64), (hereinafter for

brevity referred to as the "Sessions Judge's Court") in Criminal

Appeal No.1244/2014.

The appeal was contested by the respondent who was the

complainant in the Trial Court. The Sessions Judge's Court in its

order dated 10-09-2015 dismissed the appeal, confirming the Crl.R.P.No.1168/2015

judgment of conviction and order on sentence passed by the

Trial Court dated 14-10-2014 in C.C.No.15991/2011.

Aggrieved by the said judgment, the accused has preferred

this revision petition.

2. The summary of the case of the complainant- Financier,

in the Trial Court is that, the accused availed a loan of a sum of

`11,00,000/- from it in two instalments of a sum of `7,00,000/-

on 03-04-2009 and another sum of `4,00,000/- on 17-07-2009

by depositing the title deeds pertaining to an immovable

property and executing a registered simple mortgage deed in

favour of the complainant. The accused failed to return the loan

amount within the agreed time. However, at the insistence of

the complainant for repayment of the loan, the accused issued a

cheque bearing No.017834 dated 15-07-2010 for a sum of

`11,00,000/- in the name of the complainant and drawn on

Canara Bank, Kumara Park West Branch, Bangalore. When the

said cheque was presented by the complainant for its realisation,

the same came to be returned dishonoured with the banker's

endorsement "funds insufficient" and "exceeds arrangement"

vide endorsement dated 22-07-2010. However, at the specific Crl.R.P.No.1168/2015

request of the accused, the complainant re-presented the said

cheque in the last week of August 2010, which also found the

same result of dishonour from the bank with the reason of 'funds

insufficient'. Thereafter, the complainant got issued a legal

notice to the accused on 09-09-2010 through Registered Post

Acknowledgment Due (RPAD) as well Under Certificate of Posting

(UCP), demanding the payment of the cheque amount.

However, the accused instead of paying the cheque amount, sent

an untenable reply on 27-09-2010, which constrained the

complainant to institute a criminal case against him in the Trial

Court for the offence punishable under Section 138 of the N.I.

Act.

3. The accused appeared in the Trial Court and contested

the matter through his counsel.

4. To prove its case, one Sri. Channappa, who claims

himself to be the proprietor of the complainant establishment got

himself examined as PW-1 and got marked documents from

Exs.P-1 to P-14. On behalf of the accused's side, neither any

witness was examined nor any documents were marked as

exhibits.

Crl.R.P.No.1168/2015

The Trial Court after recording the evidence led before it

and hearing both side, by its impugned judgment dated

14-10-2014 convicted the accused for the offence punishable

under Section 138 of the N.I. Act and sentenced him to pay a

fine of `11,05,000/-, in default of payment of the said fine

amount, to undergo simple imprisonment for six months.

Challenging the said judgment of conviction passed by the Trial

Court, the accused preferred an appeal in Criminal Appeal

No.1244/2014 before the learned Sessions Judge's Court, which,

after hearing both side, by its impugned judgment dated

10-09-2015, dismissed the appeal filed by the accused, while

confirming the impugned judgment of conviction and order on

sentence passed by the Trial Court. Being aggrieved by the

judgments of conviction and order on sentence, the accused has

preferred this revision petition.

5. The respondent herein is being represented by his

counsel.

6. The Trial Court and Sessions Judge's Court's records

were called for and the same are placed before this Court.

Crl.R.P.No.1168/2015

7. Heard the arguments. Perused the materials placed

before this Court including the Trial Court and Sessions Judge's

Court's records.

8. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Trial

Court.

9. The only point that arise for my consideration in this

revision petition is:

Whether the judgments under revision are perverse, illegal and erroneous warranting interference at the hands of this Court?

10. Learned counsel for the revision petitioner/accused in

his arguments canvassed only two points, stating that the legal

notice stated to have sent by the complainant was beyond the

statutory period of one month, as such, the notice is invalid in

the eye of law. He further submitted that the legal notice was

not marked as an exhibit in the Trial Court, as such also, the

impugned judgments and the order on sentence deserve to be

set aside.

           11.       PW-1,     in       his      examination          in
                                                     Crl.R.P.No.1168/2015

chief in the form of affidavit evidence, has reiterated the

contentions taken up by the complainant in the complaint. In

support of its contention, he got produced a notorised copy of

the money lender's licence at Ex.P-1, a tax paid receipt of the

income tax for the year 2013-14 at Ex.P-2, the original cheque

said to have been issued by the accused at Ex.P-3, wherein he

also got marked the signature of the accused at Ex.P-3(a). The

witness also produced two Bank endorsements at Exs.P-4 and P-

5, the legal notice at Ex.P-6, postal receipt at Ex.P-7 and

acknowledgment for Under Certificate of Posting at Ex.P-8,

courier receipt at Ex.P-9, postal acknowledgement of RPAD card

at Ex.P-10, reply notice dated 27-09-2010 at Ex.P-11, a copy of

the registered document shown to be a deposit of the title deeds

at Ex.P-12, which document was permitted to be marked after

the Trial Court comparing the notorised copy with the original of

the same. He has also got marked his complaint at Ex.P-13 and

a Sale Deed dated 28-03-2014 said to have been executed by

one Sri. S. Kantharaju at Ex.P-14. It is to be noticed that in

spite of granting sufficient opportunity, PW-1 was not

cross- examined from the accused's side, as such, the entire Crl.R.P.No.1168/2015

evidence of PW-1 has remained un-denied from the accused's

side.

12. The un-denied evidence of PW-1 - Sri. Channappa

would go to show that, the complainant concern is a

proprietoryship concern and he is the proprietor of the said

concern and doing Money Lending business, being a licenced

money lender and had lent a sum of `7,00,000/- at the first

instance and another sum of `4,00,000/- at the second instance,

in total, a sum of `11,00,000/- to the accused as evidenced in

the deposit of the title deeds document, which is at Ex.P-12.

13. Learned counsel for the petitioner/accused also does

not dispute the availing of the loan by the accused by deposit of

the title deeds as per Ex.P-12 and also issuance of cheque by the

accused as per Ex.P-3 and its subsequent dishonour. The

returned cheque is marked as Ex.P-3. The reason for dishonour

of the cheque by the banker as evidenced in Exs.P-4 and P-5

would go to show that, it was for insufficiency of funds and for

exceeding the arrangement. As stated by PW-1 in his evidence

and also as evidenced in Exs.P-4 and P-5, the said cheque was

initially returned on 22-07-2010, however, the same was Crl.R.P.No.1168/2015

presented again and the same came to be returned again on

31-08-2010. According to PW-1, the legal notice was sent only

after its second dishonour of the cheque, as such, the legal

notice was sent on 09-09-2010. Therefore, the first point of

argument of the learned counsel for the petitioner/accused that,

the cheque was returned on 22-07-2010 whereas the notice was

sent on 09-09-2010, thus the notice is barred by limitation, is

not acceptable. Thus, from the date of the second dishonour of

the cheque which was on 31-08-2010, the notice has been sent

within the statutory period as has come out in the evidence of

PW-1.

14. Further, in order to show that the notice was sent to

respondent through Registered Post Acknowledgement Due and

also Under Certificate of Posting, the complainant has got

produced and marked postal receipts and acknowledgment at

Exs.P-7 to P-10, as detailed above. Even though the alleged

legal notice dated 09-09-2010 sent on behalf of the complainant

to the accused is not marked as an exhibit, but the reply to the

said notice which is at Ex.P-11 acknowledges the receipt of the

said notice dated 09-09-2010 sent on behalf of the complainant

by the accused. It is only after acknowledging the receipt of the Crl.R.P.No.1168/2015

said notice, the accused has proceeded to give his reply through

Ex.P-11. Therefore, in the light of the un-denied and undisputed

evidence of PW-1, which is further corroborated by the evidence

of postal receipt and acknowledgement at Exs.P-7 to P-10, and

more particularly, in the light of the acknowledgment of receipt

of the notice by the accused through his reply at Ex.P-11, the

mere non-marking of a copy of the legal notice sent by the

complainant to the accused is not fatal to the case of the

complainant. As such, the second and the final point of

argument of the learned counsel for the petitioner/accused on

the said aspect is also not sustainable.

The un-denied evidence of PW-1 which is further corroborated

by Exs.P-1 to P-12 would clearly go to show that, in response to the

loan availed by the accused of a sum of `11,00,000/-, he had

issued the cheque at Ex.P-3 to the complainant, which came to be

dis-honoured, when presented for its realisation, for the reason of

insufficiency of funds. Thereafter, despite making a demand for

payment of the cheque amount within time, the accused has failed

to make good the payment of the same, as such, not only the

presumption that has arisen in favour of the complainant under

Section 139 of the N.I Act, but also the un-denied evidence of Crl.R.P.No.1168/2015

PW-1 which is further corroborated by Exs.P-1 to P12 crystalises

the said presumption in favour of the complainant proving the

accused guilty of the alleged offence.

15. It is appreciating these aspects in their proper

perspective, both the Trial Court as well the Sessions Judge's

Court since have held the accused guilty of the alleged offence

and since the Trial Court has passed an order on sentence

proportionate to the gravity of the proven guilt, I do not find any

perversity, illegality or irregularity, warranting interference at the

hands of this Court.

Accordingly, I proceed to pass the following:

ORDER

The Criminal Revision Petition stands dismissed as devoid

of merits.

Registry to transmit a copy of this order to both the Trial

Court and also the Sessions Judge's Court along with their

respective records forthwith.

Sd/-

JUDGE BMV*