D Govindaiah vs P Sreenivasa
2021 Latest Caselaw 472 Kant

  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
                               2


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:

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.

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

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

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

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

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

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

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

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

pandemic COVID 19 situation, the accused is granted time

till 30th June, 2021 to pay the amount.

Ordered accordingly.

Sd/-

JUDGE

PL*