Karnataka High Court

Smt B R Dhakshayani vs Smt Leelavathi Bai on 15 December, 2021

Bench: V Srishananda

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 15TH DAY OF DECEMBER, 2021

                      BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.786/2014

BETWEEN:

SMT.B.R.DHAKSHAYANI,
W/O M.NAGABHUSHAN,
AGED ABOUT 63 YEARS,
R/AT NO.1242, 10TH MAIN,
5TH CROSS, PRAKASH NAGAR,
BANGALORE - 560 021.
                                     ... PETITIONER
(BY SRI.BRYEN SEBASTIAN, ADVOCATE FOR
    SRI.JOSE SEBASTIAN, ADVOCATE)

AND:

SMT.LEELAVATHI BAI,
W/O NAGARAJ PRASAD,
R/AT NO.74/1, 5TH MAIN ROAD,
7TH CROSS PAPANNA BLOCK,
GANGA NAGAR POST,
BANGALORE - 560 032.
                                     ...RESPONDENT
(BY SRI.SHOBITH SIMHA S., ADVOCATE FOR
    SRI.G.V.NARASIMHAMURTHY, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 OF CR.PC PRAYING TO SET ASIDE
THE ORDER DATED 11.07.14 PASSED BY THE P.O., FTC -
XV, BANGALORE IN CRL.A.NO.693/11 IN DISMISSING THE
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APPEAL SETTING ASIDE THE ORDER OF CONVICTION AND
SENTENCE PASSED BY THE XII ADDL.C.M.M., BANGALORE
CITY IN C.C.NO.182/2009 DATED 4.8.11.


     THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-

                       ORDER

Heard Sri. Bryen Sebastian, learned counsel for Sri.

Jose Sebastian, learned counsel appearing for the revision

petitioner and Sri. Shobith Simha S., learned counsel for

Sri. G. V. Narasimha Murthy, learned counsel appearing for

the respondent and perused the records.

2. This revision petition is filed by the revision

petitioner/accused, who suffered an order of conviction in

C.C. No.182/2009 whereby he was ordered to pay fine of

Rs.1,10,000/- for the offence punishable under Section

138 of the Negotiable Instruments Act, 1881 (hereinafter

referred to as 'NI Act' for short). Out of the fine amount,

a sum of Rs.1,00,000/- is to be paid as compensation to

the complainant which was confirmed by judgment dated

11.7.2014 passed in Crl.A. No.693/2011 by the Presiding

Officer, FTC-XV, Bengaluru.

3. Brief facts of the case are as under:

A complaint came to be lodged by the respondent

herein stating that the complainant and the accused were

friends for five years and on the basis of the friendship,

the accused approached the complainant in the first week

of January - 2008 and obtained hand loan of Rs.1,00,000/-

with an assurance that she would repay the loan amount

within three months. Accordingly, the complainant

advanced a sum of Rs.1,00,000/- to the accused and after

three months, on demand for repayment, the accused was

postponing the payment, on one pretext of the other.

Ultimately, accused issued a cheque bearing No.561084

dated 05.05.2008 for a sum of Rs.1,00,000/- drawn on

Vijaya Bank, Race Course Road, Bengaluru which on

presentation came to be dishonored with an endorsement

'insufficient funds'. The complainant brought to the notice

of the same on 10.06.2008. As per the assurance of the

accused, the cheque was represented but again, the same

stood dishonored with an endorsement 'insufficient funds'.

Therefore, a legal notice dated 17.06.2008 was issued to

the accused by RPAD as well as under certificate of

posting. Despite the issuance of the notice, there was no

compliance to the callings of the notice and therefore, the

complainant was constrained to approach the jurisdictional

Magistrate for taking action against the accused.

4. In pursuance of the summons issued, the

accused entered appearance and after completing the

formalities, plea was recorded. Since accused pleaded not

guilty, the complainant got examined herself as PW.1 and

relied on six documentary evidence, which were exhibited

and marked at Exs.P1 to P6. Thereafter, the accused

statement as contemplated under Section 313 of Cr.P.C.

was recorded wherein the accused denied all the

incriminating materials. To rebut the presumption

available to the complainant, the accused got examined

herself as DW.1 and also relied on four documentary

evidences, which were exhibited and marked at Exs.D1 to

D4.

5. After conclusion of the trial, learned Magistrate

heard the parties in detail and passed an order of

conviction, convicting the accused for the offence

punishable under Section 138 of the NI Act and ordered to

pay fine amount of Rs.1,10,000/-. Out of which,

Rs.1,00,000/- was ordered to be paid as compensation to

the complainant.

6. Being aggrieved by the same, the accused

preferred an appeal before the Presiding Officer, F.T.C. XV,

Bangalore in Crl.A. No.693/2011.

7. Learned judge in the First Appellate Court after

securing the records and re-appreciation of the materials

on record and also in the light of arguments put forth by

the parties, dismissed the appeal whereby the order

passed by the learned trial Magistrate stood confirmed.

Being aggrieved by the same, the accused is before this

Court in this revision petition.

8. In the revision petition, the following grounds

have been raised:

x "The order of conviction and sentence passed yb the trial Court confirmed by the Appellate Court are opposed to law and facts.

x Both the Lower Court as well as Appellate Court did not consider the implication of the evidence adduced by the petitioner as well as the documents marked in disproving the initial presumption drawn with regard to the cheques referred to in the complaint. The petitioner has produced cogent evidence by way of Ex.D1 to establish that a complaint was lodged before High Ground Police Station as back as on 06/09/2007 against both Leelavathi Bai as well as Rafiyanaaz contending the running of the chit business and parting with blank cheques and pro-note. It is also contended that 8 cheques and pro-note were in the possession of Leelavathi Bai and two cheques and one promissory note were in the possession of Rafiyanaaz and since they interfered with the Canteen Business a compliant was lodged on 06/09/2007, much earlier to the date narrated in the complaint Ex.P9. Added to that since the cheques were retained by both of them a letter was given to Vijaya Bank and surrender his cheque book and pass book and drawn the balance amount lying in the account amounting to Rs.1,400/- which is reflected in Ex.D2 to D4 and the same was taken place on 16/09/2007

and as such it is improbable either for the petitioner to have dealing with respondent Rafiyanaaz or Leelavathi Bai, and their parting of the amount subsequent to the police complaint are too remote and if the relationship is revived thereafter, it is for the respondent to make averments in this regard in the complaint or in the notice alleged to have been sent to the petitioner. In fact the respondent version that petitioner has approached for financial assistance during January 2008 and as such the theory averred by the respondent in the complaint cannot be believed at any stretch of imagination and the Court below erred in not appraising the natural events as well as his consequences and probability in parting with the money which resulted miscarriage of justice.

x The approach of the Court below in not appraising the material available on record caused material irregularity in the exercise of jurisdiction vested in it.

x It is seen that the statutory notice purported to have been send to the address of Dw.2 who was running a Annapoorneshwari P.G. Homes (for males) in which no female Falk allow to join and this fact was elicited by Dw.2, it is also elicited that the petitioner is not having any connection with said P.G. Homes. By furnishing false address the notices have been send to satisfy the requirement of Section 138 of the NI Act. Since the notice have been not sent to the address of the petitioner, either by registered post or certificate of posting, the respondent has not satisfied the statutory requirements of service of notice as contemplated under Section 138(b) of the NI Act. The complaint filed is not maintainable as statutory notice as

contemplated under Section 138 (b) of the NI Act was not issued to the petitioner and this fact was not appraised by the Court below which resulted miscarriage of justice.

x The Court below fails to appraise that the presumption and that under Section 118 & 139 is a rebuttal presumption and the standard of proof required for rebuttal does not require proof beyond reasonable doubt something has to be brought on record to substantiate the defence and in such circumstances the burden of proof shifted back to complainant by producing convicting substantial evidence. Since the petitioner has successfully rebutted presumption by production of the copy of the complaint along with the letter to Bank and account extract vide Ex.D1 to D4 which fact was not considered by the Court below in drawing correct conclusions.

x The recording of sworn statement as required under Section 313 of Cr.P.C. in typed format is against the settled position of law and such a procedure causes material irregularity in the exercise of jurisdiction vested in it.

x The Court below has not appreciated in its entirety and with implications the decision reported in (2009) 2 SCC 513 in Kumar Export V/s. Sharma Carpets and non-appreciation of the presumption and rebuttal caused the Court to draw adverse inference with resulted miscarriage of justice.

x The Court below erred in not noticing that no cause of action established by the respondent in initiating proceedings under Section 138 of the NI Act.

x The evidence of petitioner as well as his witness were totally disregard by the Courts below which caused miscarriage of justice.

x The order is otherwise opposed to law and facts.

x Limitation: The criminal revision petition is filed within the prescribe time."

9. Reiterating the above grounds, Sri.Bryen

Sebastian, learned counsel appearing for the revision

petitioner vehemently contended that both the Courts have

not properly appreciated the material evidence on record

and therefore, sought for allowing the revision petition.

10. He further brought to the notice of this Court

that earlier to filing of the very complaint itself, the

accused has filed a complaint before the High Grounds

Police Station on 06.09.2007. Admittedly, the cheque

being retained by the complainant as security in respect of

chit transaction and also a request was made to the Vijaya

Bank to close the account but those documents have not

been rightly appreciated. In order to appreciate the

defense put forth by the accused that, there is a patent

factual and jurisdictional error committed by both the

Courts and thus sought for allowing the revision petition.

11. Per contra, learned counsel appearing for the

respondent - complainant supported the impugned

judgment by contending that Exs. D1 and D2 are not

properly proved by the accused and therefore, the

presumption available to the complainant has not been

properly rebutted, which has been rightly appreciated by

both the Courts.

12. In view of the rival contentions urged by the

learned counsel for the parties, the points that would arise

for consideration are:

"1. Whether the finding recorded by the learned Trial Magistrate and confirmed by the first Appellate Court that the accused is guilty of the offence punishable under Section 138 of the NI Act, is suffering from patent factual defect or legal infirmity or error of jurisdiction or perversity and thus calls for interference?

                  2.     Whether      the      sentence      is
             excessive?"

13. In the case on hand, issuance of cheque and

the signature found therein is not in dispute. Admittedly,

the legal notice is not replied by the accused. It is the

specific case of the accused that the cheuqe was issued in

respect of chit transaction and even after paying the entire

outstanding in the chit transaction, the complainant

retained the said cheque and a promissory note which has

been misused by the complainant and thus, the accused

had sought for action against the complainant by lodging a

complaint to the High Grounds Police Station on

06.09.2007 as per Ex.D1. However, there is no material

on record as to what is the logical end that has been

brought to the complaint, which has been marked at

Ex.D1. The learned Trial Magistrate has bestowed its

attention to the said aspect of the matter and formed an

opinion that Exs.D1 and D2 stands not proved in a proper

manner. Insofar as Ex.D2 is concerned, it is a letter

addressed to the Vijaya Bank, Race Course Road on

11.09.2007. However, the Bank seal shows that the same

is acknowledged by the Bank on 01.01.2010. There is also

another seal found on Ex.D2, which says that cash paid

but, that cannot be a proper seal to show that Ex.D2 was

issued by the accused on 11.09.2007. Moreover, if Ex.D2

is issued, why would the Bank return Ex.D1 twice with an

endorsement 'insufficient funds' is a question that remains

unanswered.