K Rajarama Shetty vs K S F C Having Its
2021 Latest Caselaw 1105 Kant

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 18TH DAY OF JANUARY, 2021

                             BEFORE

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

       CRIMINAL REVISION PETITION No.752 OF 2012


BETWEEN:


K. Rajarama Shetty
S/o Vittal Shetty
Age: major
R/at Room No.402
Preethi Apartments
Kodialbail Post
Mangalore.
Pin Code: 575 002.                        :PETITIONER


(By Sri. K. Chandrashekar, Advocate)


AND:


K.S.F.C. having its
Head Office at No.1/1
Thimmaiah Road
Near Contonment Railway Station,
Bangalore,

Branch Office at Somayaji building
Bunts Hostel Road,
                                                         Crl.R.P.No.752/2012
                                     2


Mangalore,
Rep. by General Manager
Sri N. Ashwatharam.
Pin Code: 575 002.                                          :RESPONDENT


(By Sri Bipin Hegde, Advocate)



      This Criminal Revision Petition is filed under Section 397 read
with Section 401 of Cr.P.C. praying to set aside the Judgment dated
16.06.2011    passed    by   the    Fast   Track   Court,   Mangalore    in
Crl. Appeal No.25/2007, in so far as it pertains to confirming the
order on sentence passed by the V JMFC, Mangalore in C.C.
No.2487/2003, dated 10.01.2007, pertaining to imposition of fine of
`4,50,000/- to the petitioner, in the interest of justice.


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

The petitioner was the accused in the Court of learned V JMFC

at Mangalore (hereinafter referred to as 'the Trial Court) in C.C.

No.2487/2003 who was tried for the offence punishable under

Section 138 of the Negotiable Instruments Act, 1881 (for brevity,

hereinafter referred to as 'the N.I. Act').

Crl.R.P.No.752/2012

2. The summary of the case of the complainant in the Trial

Court is that on the application of M/s. Kushi Restaurant, a

partnership firm of M/s. Shubha Enterprises, the complainant -

Corporation had sanctioned a term loan of `10,20,000/- on

30.11.1994 for the establishment of an industry to be engaged in

vegetarian restaurant. The accused herein had executed a

guarantee deed dated 13.12.1994 and other loan papers in favour

of the complainant. The principal borrower had failed to repay the

loan in spite of several demands made by the complainant. A

notice was issued by the complainant demanding the re-payment of

the loan amount in pursuance of which, towards the discharge of

the liability the accused issued a cheque dated 15.03.2001 for

`3,00,000/- in favour of the complainant - Corporation. The said

cheque when presented for encashment, came to be dishonoured

with banker's shara 'funds insufficient'. A legal notice demanding

the cheque amount was also issued by the complainant's advocate

to the accused. However, the accused neither replied to the said

notice nor complied with the demand made in the notice. This

constrained the complainant to institute a criminal case against the Crl.R.P.No.752/2012

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

Act.

Since the accused pleaded not guilty, the trial was held

wherein the complainant - Corporation got examined its Deputy

Manager as PW-1 and got marked documents from Exs.P1 to P8.

The accused got examined himself as D.W.1 and marked one

document as exhibit D1. The Trial Court, after hearing arguments

from both side and considering the material on record, by its

impugned Judgment of conviction and Order on sentence, convicted

the accused for the offence punishable under Section 138 of the

N.I. Act and sentenced him accordingly.

3. Aggrieved by the Judgment of the Trial Court, the

accused preferred an appeal in the Fast Track Court, Mangalore,

Dakshina Kannada(for brevity, hereinafter referred to as 'Session

Judge's Court') in Crl.A. No.25/2007. The said Court, by its Order

dated 16.06.2011 while confirming the Judgment of conviction

passed by the Trial Court sentenced the accused to pay fine of

`4,50,000/-, modifying the default sentence, however, it set aside

the Order of imprisonment for a period of three months passed by Crl.R.P.No.752/2012

the Trial Court and thus allowed the appeal in part. Aggrieved by

the same, the accused has preferred this revision petition.

4. The Sessions Judge's Court's and the Trial Court records

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

the arguments of learned counsels for the parties and perused the

materials placed on record.

5. The only point that arises for my consideration is,

"whether the Judgment of conviction and Order on sentence passed

by the Trial Court as modified by the Sessions Judge's Court is

incorrect and suffers with any illegality or perversity, warranting

interference at the hands of this Court?"

6. Learned counsel for the petitioner who is appearing

physically in the Court in his single sentence argument submitted

that his only defence before both the Trial Court as well as the

Sessions Judge's Court that notice was not duly served upon the

accused was not accepted by them which ended in conviction of the

accused. However, the accused since now is suffering from

Parkinson disease is unable to pay the fine amount imposed by the Crl.R.P.No.752/2012

Trial Court and confirmed by the Sessions Judge's Court. With this,

he submits that he leaves the matter to the Court.

7. Learned counsel for the respondent appearing through

video conference in his single sentence argument submitted that in

view of the fact that both the Trial Court as well as the Sessions

Judge's Court have held the accused guilty of the alleged offence

and the petitioner except pleading his inability to pay, is not

challenging the Judgment of conviction, this Court can pass no

further order in this revision petition except dismissing the present

petition.

8. A perusal of the records would go to show that both the

Trial Court as well as the Sessions Judge's Court have appreciating

the evidence led before them both from the complainant's side as

well as from the accused's side and perusing the documents

marked as exhibits, have held that the complainant has proved that

the accused has committed the offence punishable under Section

138 of the N.I. Act.

The Trial Court had sentenced the accused to undergo simple

imprisonment for a period of three months and to pay Crl.R.P.No.752/2012

compensation of `4,50,000/- to the complainant within a period of

one month under Section 357(3) of Criminal Procedure Code and in

case of default of payment of fine amount, the accused was

directed to undergo simple imprisonment for a period of twenty

days. In the appeal preferred by the accused, the said Order on

sentence was modified wherein the imprisonment portion for a

period of three months was set aside. However, the accused was

sentenced with fine of `4,50,000/- and in default, to undergo

simple imprisonment for a period of six months. It is challenging

the said Judgment of conviction and Order on sentence, the

accused has preferred this revision petition.

9. The petitioner herein as an accused in the Trial Court

had taken a contention that notice after dishonour of the cheque in

question was not served upon him and that was the only contention

as a defence taken up by him as submitted by the learned counsel

for the petitioner.

A perusal of the Trial Court record placed before me goes to

show that after the dishonour of the cheque within the statutory Crl.R.P.No.752/2012

period, the complainant claims to have issued a legal notice dated

28.03.2001 as per Ex.P4 to the accused demanding from him the

dishonoured cheque amount. The said notice was said to have been

sent through registered post with acknowledgement due. However,

as could be seen from Ex.P5, the said postal cover has been

returned to the sender unserved upon the addressee (accused).

P.W.1 has specifically stated in his evidence that the said notice

was returned to him with the postal shara "not claimed". However,

in his cross examination he has admitted a suggestion as true that

the postman has not written said shara "not claimed". But a

perusal of Ex.P5 goes to show that the postman has shown that he

had attempted to serve the notice upon the addressee on two dates

i.e. 30.03.2001 and 31.03.2001 and intimation was delivered to the

addressee about the postal article. It is only thereafter since the

addressee has not collected the postal article it was sent back to

the sender.

In the cross examination of P.W.1 it was also suggested to

the witness that notice regarding dishonour of cheque was sent on

28.03.2001. The said suggestion was admitted as true by the Crl.R.P.No.752/2012

complainant (P.W.1). Thus accused himself has, through said

suggestion, admitted that after dishonour of the cheque, a legal

notice was sent by complainant to him. Further in the cross

examination of D.W.1, the witness (accused) admitted that the

address shown in Ex.P8 which is a deed of guarantee is his correct

address. The said address was marked as Ex.P8(a). It is to the

very same address, the complainant had sent the legal notice as

could be seen in Ex.P5. Therefore, even though the accused has

physically not received the said notice, he was given intimation of

the notice by the postal authority which he did not collect. As such,

there is deemed service of notice upon him. Therefore, the

contention of the accused that there was no issuance of legal notice

to him from the complainant is not acceptable.

10. Learned counsel for the petitioner though fairly

concedes that in view of the concurrent findings by both the Trial

Court as well as the Sessions Judge's Court on merit, he has no

grounds to contest the matter on merit but submits that, as the fact

remains, the petitioner / accused is suffering from Parkinson and Crl.R.P.No.752/2012

has no source of income, as such, he is unable to pay the fine

amount.

The petitioner except making the said submission about his

alleged ill-health, has not produced any medical records to

substantiate the same. Even otherwise also, there is nothing on

record to arrive at the conclusion that the accused has got no

financial capacity or no assets either movable or immovable in his

favour to comply the sentence imposed by the Trial Court which

was modified and confirmed by the Sessions Judge's Court. In such

a scenario, merely by accepting the submission that the petitioner

is not keeping good health, the accused / petitioner cannot be

exonerated from his liability to pay fine and in default, to undergo

simple imprisonment as ordered by the Sessions Judge's Court in

the impugned appeal.

Barring the above, the petitioner has not raised any ground

worth considering in the revision petition. A careful perusal of the

impugned Judgment passed by both the Trial Court as well as the

Sessions Judge's Court goes to show that it is only after due

appreciation of the materials placed before them, they have given Crl.R.P.No.752/2012

their finding holding the accused guilty of the alleged offence. The

sentence ordered by the Sessions Judge's Court after modifying the

sentence passed by the Trial Court also since being proportionate to

the proven guilt, I do not find any reasons to interfere in the

Judgment of conviction and Order on sentence impugned in this

petition. Therefore, I proceed to pass the following:

ORDER

The revision petition is dismissed as devoid of merit.

Registry to transmit copies of this Order along with Trial Court

and Sessions Judge's Court's records to the concerned Courts,

without delay.

Sd/-

JUDGE sac*