Praveen Kumar vs Abdul Asif
2021 Latest Caselaw 565 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 11TH DAY OF JANUARY 2021

                             BEFORE

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

    CRIMINAL REVISION PETITION No.1107 OF 2011

BETWEEN:

Praveen Kumar
S/o. Late Chandra Kumar
Aged 51 years
R/a No.3, Jyothi Nivasa
Udayanagar,
Bangalore.
                                               ..     Petitioner

(By Sri. A. Keshava Bhat, and
Sri. K. Srikrishna, Advocates)

AND:

Abdul Asif
S/o. Late M. Seedi
Aged about 32 years,
R/a Seeko Mahal
Kaprigudde
Mangalore - 575 001.
                                                    .. Respondent
(By Sri. B.S. Sachin, Advocate)

                                   ****
     This Criminal Revision Petition is filed under Section 397 read
with Section 401 of Cr.P.C. praying to set aside the judgment
                                              Crl.R.P.No.1107/2011
                                 2


dated 02-08-2011 in Crl.A.No.104/2009 passed by the III Addl.
District and Sessions Judge, D.K. Mangalore; and set aside the
judgment dated 18-02-2009 in C.C.No.2367/2008, passed by the
J.M.F.C. (IV Court), Mangalore, D.K. etc.

      This Criminal Revision Petition coming on for 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 J.M.F.C (IV Court) Mangalore, Dakshina Kannada

(hereinafter for brevity referred to as the "Trial Court") in

C.C.No.2367/2008 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

18-02-2009.

Aggrieved by the same, the accused preferred a Criminal

Appeal in the Court of the learned III Additional District and

Sessions Judge, Dakshina Kannada, Mangalore,(hereinafter for

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

Appeal No.104/2009.

Crl.R.P.No.1107/2011

The appeal was contested by the respondent who was the

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

order dated 02-08-2011 dismissed the appeal, confirming the

judgment of conviction and order on sentence passed by the Trial

Court dated 18-02-2009 in C.C.No.2367/2008.

Aggrieved by the said order, the accused has preferred this

revision petition.

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

Court is that, through one Sri. Surendra, the accused came in

acquaintance with the complainant in the year 2004. At the specific

demand made by the accused for hand loan of a sum of `1,00,000/-

the complainant gave him the said loan of `1,00,000/- on

03-11-2004 through a cheque bearing No.154419 dated

03-11-2004 drawn on Corporation Bank Limited, Pandeshwar

Branch, Mangalore. The accused had agreed to repay the said loan

amount without any interest there upon within twelve months.

Thereafter, towards the dischargal of the said liability, the accused

issued a cheque bearing No.351399 dated 01-09-2005 for a sum of

`1,00,000/- drawn on Vijaya Bank, Koramangala Branch, Bangalore Crl.R.P.No.1107/2011

in favour of the complainant. When the said cheque was presented

for its realisation, it came to be dis-honoured with the Banker's

shara of 'funds insufficient' and thereafter demanding the cheque

amount, the complainant also got issued a legal notices to the

accused. However, the accused neither received the legal notice

nor met the demand made in the legal notice. This constrained the

complainant to institute a case against him for the offence

punishable under Section 138 of the N.I. Act, in the Trial Court.

3. The accused appeared through his counsel and

contested the matter.

4. After recording the evidence and hearing both side, the

Trial Court by its impugned judgment of conviction and order on

sentence dated 18-02-2009 convicted the accused for the offence

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

pay a fine of `1,47,000/-, in default, to undergo Simple

Imprisonment for a period of eight months. Aggrieved by the

same, the accused preferred an appeal in Criminal Appeal

No.104/2009 in the Sessions Judge's Court. It also by its judgment

dated 02-08-2011 dismissed the appeal, confirming the judgment Crl.R.P.No.1107/2011

of conviction and order on sentence passed by the Trial Court. It is

against those two judgments, the accused has preferred this

revision petition.

5. The respondent herein is being represented by his

counsel.

6. Learned counsel for the revision petitioner is appearing

physically in the Court. Learned counsel for the respondent is

appearing through video conference.

7. The Trial Court and Sessions Judge's Court's records were

called for and the same are placed before this Court.

8. Heard the arguments from both side. Perused the materials

placed before this Court including the Trial Court and Sessions

Judge's Court's records.

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

henceforth referred to as per their rankings before the Trial Court.

10. After hearing the learned counsels for the parties, the

only point that arise for my consideration in this revision petition is:

Crl.R.P.No.1107/2011

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

11. Learned counsel for the revision petitioner/accused in his

brief argument submitted that no statutory notice subsequent to

the dishonor of the cheque was issued to the accused. However,

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

erroneously held that there was service of notice upon the accused

which has led them to pass an erroneous judgment of conviction

against the accused. He further submitted that even though the

accused had specifically denied that the signature in the cheque at

Ex.P-1 is not his signature, still, the Trial Court did not get the said

signature compared by a handwriting expert.

12. Learned counsel for the respondent/complainant in his

argument submitted that the defence of the accused was that the

alleged loan was given by the complainant in favour of his

(complainant's) son-in-law by name Arhath and he en-cashed the

cheque in his account, since Arhat did not have a bank account

as such, he is not the primary borrower of the alleged loan

amount. However, the accused did not examine the

said son-in-law - Sri. Arhath, for the reasons best known to Crl.R.P.No.1107/2011

him, as such, the entire defence of the accused is without any basis.

He further submits that the accused has not placed any material to

show that he was not the resident of the addresses shown in the

legal notice sent by the complainant. As such, both the Courts

have rightly held that the complainant has proved the alleged guilt

against the accused.

13. It is not in dispute that the cheque at Ex.P-1 belongs to the

present petitioner (accused) and said cheque when presented by the

complainant for its payment came to be dis-honoured as per the

Banker's endorsement at Ex.P-2 showing there was insufficient fund in

his account. The accused nowhere stated that the said cheque does

not pertain to him. However, his contention with respect to the said

cheque is that the signature of the drawer in the said instrument is not

his. In that regard, except making a suggestion to PW-1 in his cross-

examination, the accused has not placed any material to substantiate

that the said signature in Ex.P-1 cheque does not belong to him.

It cannot be ignored of the fact that the cheque at

Ex.P-1 has not been returned by the banker with the reason

of difference in the alleged signature of the drawer. Had Crl.R.P.No.1107/2011

really the said cheque been dis-honoured among other reasons, if

any, including the non-tallying of the signature of the drawer, then,

the banker would have returned the said cheque interalia with the

endorsement that the signature of the drawer differs.

14. Secondly, if it were to be the contention or the defence of

the accused that the signature in Ex.P-1 does not pertain to him, it

was for him to establish the same to the satisfaction of the Trial

Court. In that regard, he had various means to prove his

contention including examining the bank Manager or summoning

his specimen signature from the banker or at least requesting the

Court to refer his signature to compare the same with the admitted

specimen signature to any hand writing expert. No attempt was

made by the accused on any one of these lines. A mere suggestion

to PW-1 in his cross-examination that the signature in the returned

cheque is not that of the drawer, would not make one to believe

that the signature of the drawer on the cheque at Ex.P-1 is not

that of the accused.

15. Thirdly, nowhere the accused has given any reason as

to how come his cheque came into the hands of the complainant.

Crl.R.P.No.1107/2011

No explanation in that regard has been given by the accused.

Though he contends that the loan amount of `1,00,000/- in the

form of cheque was given by the complainant to his (accused') son-

in-law by name Arhath, but he en-cashed it since he did not have

bank account at that time, but he does not give any reason as to, if

that were to be the case, then, why should his (accused) cheque

should lie in the hands of the complainant. Admittedly, no required

action either to stop payment of the said cheque or recovery of the

said cheque from the possession of the complainant was initiated or

taken by the accused, at any point of time. This also creates a

doubt in the defence of the accused that he had not issued any

cheque to the complainant and that the signature in Ex.P-1 does

not pertain to him.

16. In addition to the above, it also cannot be ignored of the

fact that when the accused has taken a specific defence that the

alleged loan was given to his son-in-law, nothing had prevented

him to examine the said son-in-law. Though the learned counsel

for the petitioner submitted that, he made an attempt to bring him

(son-in-law) to the witness-box but he could not do the same, Crl.R.P.No.1107/2011

would not be a reason for holding that the defence of the accused

has stood proved, at least to the extent of rebutting the

presumption formed in favour of the complainant.

On the other hand, in the cross-examination of the

complainant (PW-1) from the side of the accused, a suggestion was

made that the loan amount was required to be repaid within a

period of one year. The said witness has admitted the same as true.

By making the said suggestion, the accused has admitted the

availment of loan, otherwise, he would not have made such a

suggestion in the form of admission to none else than the

complainant in his cross-examination. This further makes it clear

that the defence of the accused that the loan was given to his son-

in-law and that he alone received that amount, is without any basis.

Furthermore, the accused in his cross-examination has also

stated that he has got no documents to show that the said loan

amount received in the form of cheque has been delivered or

transferred to his son-in-law i.e. Arhath. Therefore, the second

defence of the accused that he was not the principal borrower of

the loan amount but it was his son-in-law, is also not acceptable.

Crl.R.P.No.1107/2011

17. Lastly, the other contention of the petitioner/accused is

that, the notice said to have been issued subsequent to the

dishonor of the cheque has not been issued to him. In that regard,

he has stated that he has never been a resident of one of the

addresses shown in the notice as "No.67, Vivekananda Road,

Udayanagar, Bangalore-16". He says that the postal shara also

goes to show that the same has been returned as 'left'. That being

the case, there is no valid service of notice upon the accused.

18. A perusal of the Exhibits and the material placed before

this Court goes to show that, the alleged legal notice which is at

Ex.P-3 was sent to the two addresses of the accused under

Registered Post Acknowledgement Due (RPAD). Apart from the

address bearing No.67, Vivekananda Road, Udayanagar,

Bangalore-16, it was also sent to the address at "No.3, Jyothi

Nivas, Udaya Nagar, Bangalore-560 016". The returned postal

cover sent to that other address and which is said to be

carrying the legal notice in it which is at Ex.P-5 goes to show that the

post man has attempted the service of notice for about

five days by physically tendering the said notice to the

accused and has shown that the accused had remained absent.

Crl.R.P.No.1107/2011

It is only on the next day, he has returned the postal article to the

sender with the shara 'left' which means, for the first five days,

there is no endorsement that the addressee has left the premises.

On the other hand, the endorsement shows that attempts were

made to deliver the notice to him but the accused has not received

it. However, on the sixth day only, the endorsement stating that

the addressee has left has been written by the postman. Therefore,

it cannot be believed that the accused was not at all residing in the

said address and that he had already left when the notice was first

attempted to be served upon him on the first day.

To support the above observation, it also cannot be ignored of

the fact that, the complaint under Section 200 of the Code of

Criminal Procedure, 1973 (hereinafter for brevity referred to as

"Cr.P.C."), in the Trial Court was filed showing the address of the

accused as the resident of "No.3, Jyothi Nivas, Udaya Nagar,

Bangalore-560 016". The accused has received summons and

appeared in the Court and contested the matter. Similarly in the

present revision petition also, the accused, as a petitioner, has

shown the very same address i.e. "No.3, Jyothi Nivas, udaya Nagar, Crl.R.P.No.1107/2011

Bangalore" as his address. Therefore, the contention of the

petitioner that, no notice was issued to him or attempted to be

served upon him, is not acceptable.

19. Barring the above, the petitioner has forwarded no other

ground to consider. On the other hand, both the Trial Court as well

as the Sessions Judge's Court, after appreciating the evidence led

by both side and analysing the material placed before it since have

rightly come to the conclusion that the complainant has proved the

alleged guilt against the accused, I do not find any perversity,

illegality or irregularity in it, warranting any interference at the

hands of this Court.

20. However, admittedly, the cheque amount is `1,00,000/-

and the total amount of fine imposed by the Trial Court is

`1,47,000/-. It is the sentencing policy that sentence must be

always proportionate to the gravity of the proven guilt.

In the facts and circumstances of the case, I am view that

the sentence of fine imposed at `1,47,000/- is on the higher side,

compared to the gravity of the offence proved. It is only to modify Crl.R.P.No.1107/2011

the said aspect of sentence, interference at the hands of this Court

is required.

Accordingly, I proceed to pass the following:-

ORDER

[i] The Criminal Revision Petition is allowed in part;

[ii] Though the judgment of conviction passed by the Court

of J.M.F.C. (IV Court), Mangalore, Dakshina Kannada, convicting

the present petitioner for the offence under Section 138 of the

Negotiable Instruments Act, 1881, which is further confirmed by the

Court of the III Additional District and Sessions Judge, Dakshina

Kannada, Mangalore in Criminal Appeal No.104/2009 in its

judgment dated 02-08-2011, is not modified, however, the

sentence of fine imposed by the Trial Court which is a fine of

`1,47,000/- and in default of payment of fine, to undergo simple

imprisonment for eight months, is modified. The fine amount is

reduced to `1,22,000/- and the default sentence is reduced to three

months' Simple Imprisonment.

[iii] The apportionment of the fine amount, wherein a sum of

`2,000/- is ordered to the State and remaining amount as payable Crl.R.P.No.1107/2011

to the complainant under Section 357 of the Cr.P.C. remain

unaltered.

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*