Smt Subhadra vs Smt Sundari
2021 Latest Caselaw 2670 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 7TH DAY OF JULY, 2021

                            BEFORE

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

   CRIMINAL REVISION PETITION No.431 OF 2015

BETWEEN:

Smt. Subhadra
W/o. H.K. Prabha
aged about 41 years
r/at # 37, Gudde Hosur Village,
and Post, Kushalanagar Hobli,
Somvarpet Taluk, Coorg District
Pin 571 201.
                                                     ..Petitioner
(By Sri. Mahadeva R.K., Advocate)

AND:

Smt. Sundari
W/o. Monappa
aged about 48 years
r/at Mundadka House,
Kallugundi
Sampaje village,
Sullia Taluk, D.K.,
Pin: 574 234.
                                                    .. Respondent
(By Sri. Venkataramana M.K., Advocate)

                                  ****
      This Criminal Revision Petition is filed under Section 397 of
Code of Criminal Procedure, 1973, praying to call for records
pertaining to C.C.No.1524/2011 dated 01-10-2013 on the file of
the Civil Judge and JMFC, Sullia, D.K. and also the records
pertaining to Criminal Appeal No.346/2013 in the Court of the v
                                                        Crl.R.P.No.431/2015
                                      2


Additional District and Sessions Judge, D.K. Mangalore, sitting at
Puttur, D.K. dated 24-03-2015; to set aside the judgment and
order of conviction passed by the Civil Judge and JMFC, Sullia in
C.C.No.1524/2011 dated 01-10-2013; set aside the judgment
and order passed by the V Additional District and Sessions
Judge, D.K. Mangalore, sitting at Puttur, D.K. in Criminal Appeal
No.346/2013 dated 24-03-2015; and pass such other orders or
directions as this Hon'ble Court deems fit to grant in the facts
and circumstances of the case, in the interest of justice and
equity.

      This Criminal Revision Petition having been heard through
physical hearing/video conferencing hearing and reserved on
01-07-2021, coming on for pronouncement of Orders this day,
the Court made the following:

                                ORDER

The present petitioner as the accused was tried by the

Court of the learned Civil Judge and J.MF.C. Sullia, (hereinafter

for brevity referred to as the "the Trial Court"), in

C.C.No.1524/2011 for the offence punishable under Section 138

of the Negotiable Instruments Act, 1881 (hereinafter for brevity

referred to as the "the N.I. Act") and was convicted for the said

offence by its judgment of conviction and order on sentence

dated 01-10-2013.

Aggrieved by the same, the accused preferred a Criminal

Appeal in the Court of the V Additional District and Sessions

Judge, D.K. Mangalore, sitting at Puttur, D.K. (hereinafter for Crl.R.P.No.431/2015

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

Criminal Appeal No.346/2013.

The appeal was contested by the respondent who was the

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

order dated 24-03-2015 dismissed the appeal, confirming the

judgment of conviction and order on sentence passed by the

Trial Court dated 01-10-2013 in C.C.No.1524/2011.

Aggrieved by the said judgment, the accused has preferred

this revision petition.

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

Court is that, the accused was one of the trustees of a Trust by

name 'Karunya Charitable and Medical Services Trust', which was

formed for the upliftment of children, youth, woman and senior

citizens. The Trust was collecting subscription from the persons

who wanted to become members. The complainant was one of

the members of the said Trust and also head of one group of

about 150 women and she has collected subscriptions from the

said persons and paid to the Trust. Under the gratuitous Scheme

of the beneficiary of the Trust, it was promised to give 21 cows,

11 sheep, 1 sewing machine to the said members, who are the Crl.R.P.No.431/2015

residents of kallagundi locality and a program was fixed to be

held on 25-04-2011 at Kallgundi of Sullia Taluk. But the Trust

failed to conduct the said program and did not give the benefits

to the beneficiaries, in turn, the accused issued a cheque dated

27-04-2011 for a sum of `4,07,000/- in favour of the

complainant in her personal capacity and drawn on

Nanjarayapatana Vyavasaya Seva Sahakara Bank Ltd.,

Nanjarayapatana, Kodagu. The complainant presented the said

cheque on 29-04-2011 and for the second time on 04-07-2011

through her banker for its collection. The said cheque was

dishonoured for insufficiency of funds on 13-07-2011. the

complainant caused legal notice to the accused, demanding the

payment of the cheque amount, by registered post and also by

speed post. The said notice was returned un-served for the

reason that addressee is not present. Hence, the respondent

was constrained to institute a criminal case against the petitioner

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

3. The accused appeared in the Trial Court and contested

the matter through her counsel.

Crl.R.P.No.431/2015

4. To prove her case, the complainant got herself

examined as PW-1 and got marked documents from Exs.P-1 to

P-13(a) to (f). The accused did not get herself examined but got

marked a sole document as Ex.D-1.

The Trial Court after recording the evidence led before it

and hearing both side, by its impugned judgment dated

01-10-2013 convicted the accused for the offence punishable

under Section 138 of the N.I. Act and sentenced her to undergo

simple imprisonment for a period of one year and also liable to

pay a fine of `8,14,000/-. In default of payment of fine, the

accused was ordered to undergo simple imprisonment for a

period of six months.

Challenging the said judgment of conviction passed by

the Trial Court, the accused preferred an appeal in Criminal

Appeal No.346/2013 before the learned Sessions Judge's Court,

which, after hearing both side, by its impugned judgment dated

24-03-2015, dismissed the appeal filed by the accused, while

confirming the impugned judgment of conviction and order on

sentence passed by the Trial Court. Being aggrieved by the

judgments of conviction and order on sentence passed by both

the Courts, the accused has preferred this revision petition.

Crl.R.P.No.431/2015

5. The respondent herein is being represented by her

counsel.

6. The Trial Court and Sessions Judge's Court's records

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

7. Learned counsel for the revision petitioner and learned

counsel for respondent/complainant are appearing physically in

the Court.

Though this matter was listed for orders on I.A., however,

as desired by the learned counsels from both side, the

arguments on the main matter itself were heard from both side.

Perused the materials placed before this Court including the Trial

Court and Sessions Judge's Court's records.

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

henceforth referred to as per their rankings before the Trial

Court.

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

only point that arise for my consideration in this revision petition

is:

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

10. It is not in dispute that the present petitioner was a

trustee of the Karunya Charitable and Medical Services Trust, Crl.R.P.No.431/2015

and that the present respondent, who was the complainant in

the Trial Court was a member of the said Trust. ,According to

the complainant, being a leader of a team of members of a place

called Kallugundi, she had collected the subscriptions from those

members who had remitted the same to the Trust. The said

Trust had undertaken to deliver certain numbers of cows, sheep,

sewing machine to the said members and a date was also fixed

for delivering those articles through a function at Kallugundi.

However, the said program was postponed. According to the

complainant, who got examined herself as PW-1 in this case,

after cancellation of the said function, the accused gave her the

subject matter cheque which is at Ex.P-1 towards the amounts

payable by the Trust to the complainant as well to the other

members who were inducted into the Trust as members through

the complainant. It is the said cheque which admittedly came to

be dishonoured as per the banker's endorsements at Ex.P-3 and

Ex.P-5 for the reason of insufficiency of funds.

11. In the above background, it is the argument of the

learned counsel for the petitioner (accused) that, after the

dishonour of the cheque at Ex.P-1, though the complainant Crl.R.P.No.431/2015

claims to have sent the legal notice to the accused, but the same

was not served upon her.

12. Learned counsel for the respondent/complainant

submits that, when admittedly, notices were sent to the correct

and then prevailing address of the accused, there is a deemed

service of notice upon the accused since she intentionally

avoided in receiving the notice sent to her.

13. The complainant as PW-1 has got produced a copy of

the notice said to have been sent to the accused at Ex.P-8,

postal receipt and the speed post receipt at Ex.P-9 and P-10

respectively. she has also produced the returned RPAD cover

and returned speed post cover at Exs.P-11 and P-12

respectively. The contents of the said covers which are said to

be the notices sent to the accused are also marked as

Ex.P-11(a) and Ex.P-12(a) respectively. These documents have

not been either denied or disputed from the accused's side.

14. A perusal of these documents would go to show that

the originals of the legal notices, copy of which is at Ex.P-8 were

sent by the complainant to the accused, both under Registered

Post Acknowledgement Due (RPAD) and also speed post.

Crl.R.P.No.431/2015

However, both the notices have been returned with the postal

shara that the addressee was not in station. The accused has

not denied or disputed the address mentioned on those postal

covers. The address of the accused shown in her vakalath in

the Trial Court, the cause title in the complaint filed by the

complainant before the said Court, and in the memorandum of

the criminal appeal before the Sessions Judge's Court and also in

the present Criminal Revision Petition before this Court are all

the same address, as such, it is established that the complainant

issued the notice to the correct address of the accused. The said

notice was also tendered at the said address of the addressee.

Therefore, the accused now cannot contend that there was no

notice issued to her. As such, the contention of the learned

counsel for the petitioner/accused that, no statutory notice was

issued by the complainant to the accused, is not acceptable.

15. The second and the main point of argument of the

learned counsel for the petitioner/accused is that, there was no

legally enforceable debt towards the complainant, as such, the

cheque at Ex.P-1 cannot be considered as issued towards any

legally enforceable debt.

Crl.R.P.No.431/2015

16. Learned counsel for the respondent/complainant in his

argument submitted that, the very evidence of the complainant

that towards the amount payable to the complainant and the

other beneficiaries who were inducted into the Trust under the

leadership of the complainant, the cheque was issued, which is

further corroborated from the letter at Ex.D-1, which shows that,

there existed a legally enforceable debt in favour of the

complainant. He further submits that the very issuance of the

cheque by the accused in favour of the complainant gives rise to

a presumption about the existence of a legally enforceable debt

in favour of the complainant.

17. It is not in dispute that the accused is the drawer of

the cheque at Ex.P-1. It is also not in dispute that the said

cheque is drawn in favour of the complainant, for a sum of

`4,07,000/-. Admittedly, the said cheque has been returned

when presented for its realisation for the reason of insufficiency

of funds, after which, a legal notice was issued by the

complainant to the accused, demanding the payment of the

cheque amount. Admittedly, the cheque amount has not been

paid by the accused to the complainant till date. Thus, a

presumption about the legally enforceable debt forms in favour Crl.R.P.No.431/2015

of the complainant. However, the said presumption is

rebuttable.

18. In the process of rebutting the presumption, the

accused in the cross-examination of PW-1, has taken up a

contention that, she (complainant) had come out of the Trust on

05-04-2011, as such, she was not liable to the complainant

under the cheque at Ex.P-1. However, the said defence taken by

the accused was not admitted by the complainant (PW-1) in her

cross-examination. Therefore, when the cheque is issued from

the personal account by the accused, drawn in favour of the

complainant and when the complainant has denied that the

accused was not liable to her under the said cheque and also

denied the fact that the accused had left the Trust on

05-04-2011 itself, the burden of establishing that, there existed

no legally enforceable debt towards the complainant would be

upon the accused. However, it is sufficient for the accused to

make out a case on preponderance of probabilities in her favour

and that she need not have to prove the same beyond reasonable

doubts.

Crl.R.P.No.431/2015

19. As already observed, the accused has not denied that

she was the member of the Trust by name Karunya Charitable

and Medical Services Trust. However, it is her contention that,

she had come out of the said Trust on 05-04-2011. In that

regard, except making a suggestion to PW-1 in her cross-

examination, the accused has not confronted any document to

the said witness. Though the accused in her statement under

Section 313 of the Code of Criminal Procedure, 1973 (hereinafter

for brevity referred to as "the Cr.P.C."), is said to have filed her

statement along with a copy of the alleged Amendment Deed of

the Trust, still, the said alleged Amendment Deed of Trust has

neither been marked as an exhibit nor confronted to PW-1 in her

evidence. As such, the complainant had no opportunity to go

through the said document and to either admit it or to dispute

the same. Still, considering the contention of the accused that

she (complainant) had come out of the Trust on 05-04-2011, as

mentioned in the said Trust Deed, it can be noticed that even

according to the accused, though the cheque at Ex.P-1 is dated

27-04-2011, but it was given to the complainant on 19-01-2011

itself as could be seen from Ex.D-1- letter.

Crl.R.P.No.431/2015

Ex.D-1 is a letter of acknowledgment shown to have been

submitted to the Trust by the complainant on 19-01-2011,

acknowledging the receipt of the cheque at Ex.P-1 with respect

to the dischargal of the liability of the Trust towards the

complainant and other members said to have been admitted to

the membership of the Trust through the complainant. The said

document was produced by none else than the accused herself

which means the accused has admitted that, the complainant

has acknowledged the receipt of the cheque which is at Ex.P-1.

Further, it can be seen that, the said cheque is acknowledged by

the complainant by taking upon her the responsibility of reaching

the benefits to the beneficiaries, which responsibility originally

was upon the Trust. Therefore, the said letter at Ex.D-1 would

clearly go to show that the Trust had transferred the

responsibility of discharging its liability towards other members,

to the complainant, accepting which, the complainant has

received the cheque at Ex.P-1. Further, the complainant as

PW-1 in her evidence has also made it clear that the said cheque

amount includes the amount payable by the Trust to herself also.

Therefore, the contention of the learned counsel for the Crl.R.P.No.431/2015

petitioner that there existed no legally enforceable debt in favour

of the complainant, is not acceptable.

20. In addition to the above, Ex.D-1 also would go to show

that even according to the accused, the cheque at Ex.P-1 was

delivered to the complainant on 19-01-2011 itself, which was

nearly two and a half months prior to the alleged date of coming

out of the accused from the Trust. Thus, the said cheque when

it was given to the complainant on 19-01-2011, was a post-

dated cheque and that, at that time, the accused was very much

an active trustee in the said Trust and it is taking the

responsibility of discharging the liability towards the complainant

and other members, the accused has issued the said cheque to

the complainant. It further establishes that the cheque at Ex.P-1

was issued by the accused to the complainant towards legally

enforceable debt.

21. Learned counsel for the petitioner/accused also

submitted that the criminal case has been filed against the

Trustees of the said Trust, in which, a charge sheet has also

been filed arraigning all the Trustees, except the present Crl.R.P.No.431/2015

petitioner (accused), as such also, the present petitioner is not

liable.

The said argument of the learned counsel for the revision

petitioner/accused is not acceptable for the reason that, merely

because in a criminal case alleged to have been instituted with

respect to the alleged misdeeds of the Trust, in which the

present petitioner is not a party, by the said fact itself, it cannot

be held that, the present petitioner(accused) stands exonerated

from her liability under Ex.P-1 towards the complainant under

Section 138 of the N.I. Act.

22. Learned counsel for the petitioner/accused also

contended that the Trial Court did not consider Ex.D-1 and

accepting the evidence of PW-1, proceeded to pass the impugned

judgment. He also contended that, if at all any liability is there

towards the complainant, it is not by the accused, but it is by the

Trust.

Even the said argument of the learned counsel of the

petitioner is also not acceptable for the reason that, a perusal of

the impugned judgments would go to show that, both the Trial

Court as well as the Sessions Judge's Court, after considering the Crl.R.P.No.431/2015

entire evidence placed be both side, both oral and documentary

placed before them, in their proper perspective, have arrived at

the final finding, holding the accused alone as liable, as such

guilty of the offence punishable U/s.138 of N.I. Act.

Further, even though the complainant's main grievance is

against the Trust, but according to the complainant, the accused

alone was the only active Trustee in the said Trust and that the

cheque in question was also given to her by the accused herself,

holding herself as the sole responsible person. The said

statement made by PW-1 in her examination-in-chief has not

been specifically denied or disputed from the accused's side.

On the other hand, the very document confronted to PW-1

from the accused's side which is at Ex.P-1 has been given by the

Trust to the complainant towards dischargal of its liability. Thus,

when the accused, as a trustee, has permitted the Trust to give her

cheque to one of the members of the Trust and has shown herself

that she was a Secretary cum active Trustee, her contention that

she (accused) was not liable to the complainant, is not acceptable.

Though the accused in her alleged additional statement to

Section 313 of the Cr.P.C., has stated that, the Managing Trustee

had colluded with the complainant and had misused her cheque, Crl.R.P.No.431/2015

the burden of proving the said allegation was upon the accused

herself, which she has failed to discharge.

Thus, both the Trial Court as well the Sessions Judge's Court,

analysing these aspects have held the accused guilty of the alleged

offence punishable under Section 138 of the N.I. Act.

Since both the Trial Court as well as the learned Session's

Judge's Court, have after properly appreciating the evidence placed

before them, rightly held the accused guilty for the alleged offence

and have ordered sentence proportionate to the gravity of the

proven guilt, I do not find any perversity or illegality in it,

warranting interference at the hands of this Court.

Accordingly, I proceed to pass the following:

ORDER

The Criminal Revision Petition stands dismissed as devoid

of merits.

In view of disposal of the main matter, I.A.No.1/2021 does

not survive for consideration.

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*