Somashekar vs E S Vijayakumar
2021 Latest Caselaw 511 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF JANUARY, 2021

                       BEFORE

          THE HON'BLE MRS.JUSTICE M.G.UMA


  CRIMINAL REVISION PETITION NO.188 OF 2015

BETWEEN:

SOMASHEKAR
SON OF HUSSAINAPPA ELAGERA
AGED ABOUT 41 YEARS
OCCUPATION: SECOND DIVISION CLERK
IN SINDHANOOUR
CIVIL COURT (JR.DIVISION COURT)
RESIDING AT KASABA LINGASUR VILLAGE
LINGASUGUR TALUKA
RAICHUR DISTRICT-584 122.
                                  ... PETITIONER

(BY SRI:P.B.UMESH, ADVOCATE FOR
    SRI: R.B.DESHPANDE, ADVOCATE (PH))

AND:

E.S.VIJAYAKUMAR
SON OF SANGAPPA
AGED ABOUT 44 YEARS
OCCUPATION:BUSINESS
RESIDING AT RAMPURA, RAMPURA POST
MOLKALMURU TALUKA
CHITRADURGA-577 540.
                                     ... RESPONDENT

(BY SRI:R.M.RAMAKRISHNA, ADVOCATE (PH))
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     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 AND 401 CR.P.C. PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER DATED 07.02.2015
PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS
JUDGE, CHITRADURGA IN CRIMINAL APPEAL NO.2 OF
2013 AND THE JUDGMENT AND ORDER DATED 4.12.2012
PASSED   BY    THE  CIVIL  JUDGE   AND    J.M.F.C.,
MOLAKALMURU IN C.C.NO.651 OF 2010 AND ACQUIT THE
PETITIONER OF CHARGES LEVELED AGAINST HIM.

     THIS CRIMINAL REVISION PETITION COMING ON
FOR FINAL HEARING THIS DAY, THE COURT PASSED THE
FOLLOWING:

                       ORDER

The revision petitioner has assailed the impugned

judgment of conviction and order of sentence dated

04.12.2012 passed in CC No.651 of 2010 on the file of the

learned Civil Judge and JMFC, Molakalmuru, (for short 'the

Trial Court'), which was confirmed vide judgment dated

07.02.2015 passed in Crl.A.No.2 of 2013 before the

learned Additional District and Sessions Judge,

Chitradurga, (for short 'the Appellate Court') and the

petitioner herein was convicted for the offence punishable

under Section 138 of the Negotiable Instruments Act, 1881

(for short 'NI Act') and he was sentenced to pay a fine of

Rs.3,10,000/- and in default to pay fine, to undergo simple

imprisonment for a period of six months.

2. Brief facts of the case are that, the respondent

herein as complainant contended that he had paid hand

loan of Rs.3,00,000/- to the accused during the last week

of January, 2010 and towards repayment of the said loan

amount, the accused has issued Ex.P1 - cheque on

22.03.2010 for Rs.3,00,000/-. The said cheque was

presented for encashment by the complainant through his

banker, but the cheque was dishonored as there was

'insufficient funds'. The same was communicated to the

complainant vide memorandum dated 26.04.2020 which is

as per Ex.P3. The legal notice was issued to the accused

informing him regarding the dishonor of the cheque and

called upon him to repay the cheque amount. The said

notice sent through RPAD was returned as the addressee

was absent. Since the accused has not repaid the cheque

amount, the complainant presented the complaint before

the Trial Court alleging commission of offence punishable

under Section 138 of the NI Act.

3. The accused appeared before the Trial Court

and pleaded not guilty for the charges leveled against him.

The complainant examined himself as PW1 and examined

PW2 and got marked Exs.P1 to P9 in support of his

contention. The accused has denied all the incriminating

materials available on record in his statement recorded

under Section 313 of Cr.P.C. , but has not chosen to lead

any evidence in support of his defence. The Trial Court

after taking into consideration all these materials on record

came to the conclusion that the complainant is successful

in proving the guilt of the accused for the offence

punishable under Section 138 of the NI Act and the

accused has not rebutted the presumption under Section

139 of the NI Act and proceeded to convict him as stated

above. The accused has challenged the impugned

judgment of conviction and order of sentence by preferring

Criminal Appeal No.2 of 2013 before the Appellate Court,

which was dismissed vide judgment dated 07.02.2015.

4. Heard Sri.P.B.Umesh, learned Counsel

appearing for Sri.R.B.Deshpande, for the revision petitioner

and Sri.R.M.Ramakrishna, learned Counsel for the

respondent. Perused the materials including the Trial

Court records.

5. Learned Counsel for the revision petitioner

submitted that the Trial Court should not have taken

cognizance of the matter since there was delay in issuing

legal notice. Firstly, he contended that even though the

dishonor of cheque was intimated to the complainant vide

endorsement dated 25.03.2010 as per Ex.P2, the legal

notice was issued on 10.05.2010 which is beyond the

period of limitation. Secondly, he contended that the legal

notice was never served on the accused. Thirdly, he

contended that complainant has not proved his financial

capacity to lend the amount. Therefore, on all these

counts, the learned Counsel prays to set aside the

impugned judgment of conviction and order of sentence

passed by the Trial Court which was confirmed by the

Appellate Court.

6. Per contra, learned Counsel for the respondent

supporting the impugned judgment of conviction and order

of sentence passed by the Trial Court and confirmed by the

Appellate Court submitted that, the fact of dishonor of

cheque was intimated to the complainant only on

26.04.2010 vide Ex.P3. Therefore, within the statutory

period of 30 days, legal notice was issued on 10.05.2010.

He also submitted that the accused has never disputed the

knowledge about the issuance of legal notice and

therefore, at this stage, he cannot raise objection

regarding service of notice. Learned Counsel also

submitted that there is no serious dispute regarding

availing of hand loan and about financial capacity of the

complainant. Considering all these facts and

circumstances, the Trial Court has proceeded to convict the

accused and there is no merit in the revision. Accordingly,

he prays for dismissal of the revision petition.

7. Even though, the learned Counsel for the

revision petitioner contended that the financial capacity of

the complainant and the lending of the amount is not

proved, I do not find any such contention raised before the

Trial Court. When the complainant was in the witness box

as PW1, learned Counsel representing the accused cross

examined him and there are only few suggestions put to

the witness regarding lending of the amount. Apart from

that, nothing has been elicited from PW1 to contend that

he was not having financial capacity or to deny availing of

hand loan.

8. Moreover, my attention was drawn by the

learned Counsel for the respondent to para No.17 of the

impugned judgment of conviction passed by the Trial

Court, where there is a reference to the part payment of an

amount of Rs.49,000/- made by the accused to the

complainant. These facts and circumstances go to show

that the accused was not serious in disputing the availing

of hand loan or financial capacity of the complainant.

Further, I do not find any defence taken by the accused

regarding the cheque Ex.P1 and it is admitted that the

same was issued by the accused. Under such

circumstances, the contention raised by the learned

Counsel for the appellant in this regard cannot be

accepted.

9. Regarding issuance of legal notice, even

though, it is contended that the same was not served on

the accused and that from the date of communication,

legal notice issued was beyond the period of limitation,

Ex.P3 is the endorsement issued by the collecting banker

which is dated 26.04.2010, whereas Ex.P2 endorsement is

by the Bank on which the cheque is drawn. Therefore, it is

clear that it was only on 26.04.2020, the complainant was

intimated about the dishonor of cheque. On that count,

the contention raised by the learned counsel for the

respondent cannot be accepted.

10. Further, even though legal notice issued

through RPAD was returned unserved as the accused was

absent, the accused has never taken any defence before

the Trial Court that he was not aware of the contents of the

legal notice, on the other hand, the tenor of cross

examination of PW1 goes to show that he was aware about

the issuance of legal notice by the complainant. Further,

from the records, it could be made out that the notice

addressed to the accused was also sent through Certificate

of Posting and it is the contention of the complainant that

the same is served on the accused. Since the accused has

not taken any defence before the Trial Court regarding non

service of notice to him, at this stage, such contention

cannot be permitted to be raised.

11. Even though, the complainant contends that

Ex.P1 - cheque issued by the accused was in discharge of

legally enforceable debt, no specific defence is raised by

the accused, except the bald denial. Therefore,

presumption under Section 139 of the NI Act comes into

operation and accused has not chosen to rebut the same

either during cross examination of PW1 of by stepping into

the witness box or by producing any material. Therefore, I

do not find any merit in the contention raised by the

accused/revision petitioner and therefore, the revision

petition is liable to be dismissed.

Accordingly, the Criminal Revision Petition is

dismissed.

Sd/-

JUDGE

*bgn/-