Sri K Muniraju vs Sri B S Manjunath
2021 Latest Caselaw 2156 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 8TH DAY OF JUNE 2021

                              BEFORE

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

 CRIMINAL REVISION PETITION No.537 OF 2017

BETWEEN:

Sri. K. Muniraju
S/o. Late Krishnappa,
Age: 45 years,
R/at B. Narayanapura,
Ward No.11, 2nd Main Road,
14th Cross, Dooravaninagar,
Bangaluru - 560 016.
                                                     ..Petitioner
(By Sri. Shivagondappa S. Zulapi, Advocate)

AND:

Sri. B.S. Manjunath,
S/o. Shivarudaraiah,
Aged about 55 years,
R/at No.001, Hemavathi Residency,
2nd Cross, Udayanagara,
Chikkakallasandra,
Uttarahalli Main Road,
Bangaluru.
                                                    .. Respondent
(By Sri. B.C. Chethan, Advocate)

                                  ****
      This Criminal Revision Petition is filed under Section 397 of
the Code of Criminal Procedure, 1973, praying to call for the
records and set aside the judgment of the Court below; in
C.C.No.7901/2012, dated 02-05-2015 passed by the 21st ACMM
at Bangalore and in Criminal Appeal No.1035/2015 dated
                                                         Crl.R.P.No.537/2017
                                      2


02-09-2016 passed by the LIX City Civil and Sessions Judge at
Bangalore City and acquit the petitioner of all charges, in the
interest of justice and equity.

      This Criminal Revision Petition having been heard through
Video Conferencing Hearing and reserved on 02-06-2021, 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 XXI Additional Chief Metropolitan

Magistrate, Bangalore, (hereinafter for brevity referred to as "the

Trial Court"), in Criminal Case No.7901/2012 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 02-05-2015.

Aggrieved by the same, the accused preferred a Criminal

Appeal in the Court of the learned LIX Additional City Civil and

Sessions Judge, Bangalore City (hereinafter for brevity referred

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

No.1035/2015.

The appeal was contested by the respondent who was the

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

order dated 02-09-2016 dismissed the appeal, confirming the Crl.R.P.No.537/2017

judgment of conviction and order on sentence passed by the

Trial Court dated 02-05-2015 in C.C.No.7901/2012.

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, himself and the accused are well acquainted with

each other as friends. During the month of November-2011, the

accused borrowed a sum of `2,50,000/- from him as a loan,

promising to repay the same together with interest at the rate of

`2% per month. Since the accused did not repay the loan

amount within the agreed time and when demanded for its

payment by the complainant, the accused issued a cheque

bearing No.550334 dated 20-12-2011, drawn on Bank of India,

Bangalore Main Branch, Bangalore, drawn in his favour, for a

sum of `2,50,000/- towards the repayment of the loan amount.

When the said cheque was presented for its realisation by the

complainant through his banker, the same came to be returned

unpaid with the banker's endorsement 'funds insufficient'.

Thereafter, the complainant got issued a statutory notice dated

27-01-2012 to the accused, demanding the cheque amount.

Crl.R.P.No.537/2017

However, the notices sent through Registered Post both to the

residence as well to the work place address of the accused were

returned with a postal shara "I/D -not claimed". Since the

accused did not pay the cheque amount, the same constrained

the complainant to file the present criminal case against him in

the Trial Court.

3. The accused appeared through his counsel and

contested the matter.

4. To prove his case, the complainant got himself

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

P-5 and closed his side. The accused neither got himself

examined nor produced any documents in his support.

5. The Trial Court after recording the evidence led before it

and hearing both side, by its impugned judgment dated

02-05-2015 convicted the accused for the offence punishable

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

fine amount of a sum of `2,60,000/-, in default, to undergo

simple imprisonment for a period of ten months. Challenging the

said judgment of conviction passed by the Trial Court, the

accused preferred an appeal in Criminal Appeal No.1035/2015

before the learned Sessions Judge's Court, which after hearing Crl.R.P.No.537/2017

both side, by its impugned judgment dated 02-09-2016

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, the accused has preferred this

revision petition.

6. Learned counsel for the revision petitioner and learned

counsel for the respondent/complainant are appearing through

video conference.

L

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

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

8. Though this matter was listed for admission, 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.

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

henceforth referred to as per their rankings before the Trial

Court.

Crl.R.P.No.537/2017

10. 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?

11. Learned counsel for the revision petitioner/accused in

his brief argument mainly canvassed only one point that, the

Trial Court rejected the application filed by the petitioner under

Section 311 of the Cr.P.C. on 02-05-2015 and proceeded to pass

the impugned judgment on the main petition also on the very

same day, as such, he had no opportunity to challenge the order

passed on the application filed under Section 311 of the Cr.P.C.

He submitted that the accused puts his signature in

Kannada language whereas the cheque is bearing the signature

in English language, as such, he intended to summon the Branch

Manager of the concerned Bank in which the accused was

maintaining his account and to examine him as a witness, but

the accused could not get any opportunity in that regard.

However, learned counsel fairly conceded that he would not

dispute that the drawer of the cheque at Ex.P-1 is the accused.

Crl.R.P.No.537/2017

12. Learned counsel for the respondent/complainant in his

arguments submitted that the brother of the complainant by

name Sri. Veerabhadraiah was a conductor in Bengaluru

Metropolitan Transport Corporation (BMTC) wherein the accused

was a driver, as such, they were known to each other. It is

through his brother Sri. Veerabhadraiah, the complainant came

to know about the accused.

He further submitted that the accused did not file any

application in the Trial Court, seeking reference of his signature

on the cheque for an expert's opinion. He also submitted that

the cheque was not returned by his banker for the reason of any

difference in the signature, but it was returned for insufficiency

of funds, as such, the belated contention of the learned counsel

for the petitioner/accused that the signature in the cheque at

Ex.P-1 is not that of accused, is not tenable.

He further submitted that several and sufficient

opportunities were given to the accused to examine the witness

from his side even after allowing his earlier similar applications

filed under Section 311 of the Cr.P.C. However, the accused who

was practicing a tactic to cause inordinate delay, did not make

use of the said opportunities.

Crl.R.P.No.537/2017

13. It is not in dispute that the accused and complainant

were known to each other since twenty years through the

younger brother of the complainant by name

Sri.B.S. Veerabhadraiah. The complainant as PW-1 has stated

so in his evidence. The complainant as PW-1 in his examination-

in-chief, in the form of affidavit evidence, though has reiterated

the summary of his complaint, however, has given more details

about the alleged loan transaction in his cross-examination. He

has stated that, it was through his brother and near his house he

has lent the cheque amount of a sum of `2,50,000/- to the

accused in cash. He also stated that he has the annual income

of `3,00,000/- to `5,00,000/- and the amount lent was from

out of his savings which he had kept in his house.

The accused has not denied that he is the drawer of the

cheque at Ex.P-1. He has also not denied or disputed that the

cheque when presented for its realisation by the complainant,

came to be returned dis-honoured with the banker's

endorsement "funds insufficient" as per the endorsement at

Ex.P-2. PW-1, stating that after the dishonour of the cheque, he

had got issued a legal notice to the accused which is dated 27-

01-2012 to both the residential as well as the work place address Crl.R.P.No.537/2017

of the accused and has produced a copy of the legal notice at

Ex.P-3, two postal receipts at Ex.P-4 and two returned registered

postal covers said to have been sent to the accused, containing

the notices in them at Ex.P-5. One of the said cover bears the

alleged work place address of the accused and the second one

bears his residential address. The accused, nowhere has denied

or disputed that the address shown on those two returned postal

covers, either as incorrect or as not depicting his address. Those

two registered postal articles containing legal notices in them

sent to the residential and work place addresses of the accused

have been returned to the sender (complainant) with the postal

shara "I.D" (intimation delivered) "not claimed". Therefore,

when the complainant has sent the legal notices as required

under Section 138 of the N.I. Act to both the available correct

and complete addresses of the accused under Registered Post

Acknowledgement Due (RPAD) and since the accused even after

the postal authorities delivering him an intimation about the

arrival of the articles, has not claimed the same, it has to be

taken that there is a deemed service of notice upon the accused.

Therefore, when the cheque drawn by the accused in favour of

the complainant has been returned for the reason of insufficiency Crl.R.P.No.537/2017

of funds and since the accused has not paid the cheque amount

to the complainant even after the complainant making a demand

by sending the legal notices, a presumption under Section 139 of

the N.I. Act forms in favour of the complainant about the

existence of a legally enforceable debt. However, the said

presumption is rebuttable.

14. In order to rebut the presumption formed in favour of

the complainant, the accused had taken a defence from his side

in the form of a suggestion made to PW-1 in his cross-

examination suggesting to the witness that, the brother of the

complainant by name Sri. Veerabhadraiah had misused the

cheque at Ex.P-1 and had got lodged a complaint through the

complainant against the accused. He also suggested to PW-1

that accused had not issued the cheque at Ex.P-1 either to the

complainant or to his brother. However, PW-1 has denied both

the suggestions. The said suggestions in the form of defence

made by the accused themselves are contrary to each other. As

observed above, at one place, the accused has suggested to

PW-1 that, Sri. Veerabhadraiah, the brother of the complainant

has misused the cheque and got a complaint lodged through the

complainant which means the accused has meant that the Crl.R.P.No.537/2017

cheque at Ex.P-1 was given by him to the said Sri.

Veerabhadraiah. On the other hand, in the very next sentence,

the accused has suggested to PW-1 that the said cheque at Ex.P-

1 was neither given to the complainant nor to his brother by him.

In such a situation, it was for the accused to state and establish

as to, how come his cheque at Ex.P-1 came into the hands of

either the said Sri. Veerabhadraiah or the complainant. Thus, a

mere bald suggestion that the cheque was not given by him to

either the complainant or his brother would not take the case of

the accused any further in rebutting the presumption which has

formed in favour of the complainant.

15. The only argument of the learned counsel for the

revision petitioner is that, the application filed by the accused

under Section 311 of the Cr.P.C. seeking permission of the Trial

Court to examine a witness on behalf of the accused was

rejected by it and on the very same day, the impugned judgment

was also passed, as such, he had no opportunity to challenge the

said order of rejection passed on the said application.

16. In this regard, it has to be noticed that a perusal of

the Trial Court records would got to show that, the Trial Court Crl.R.P.No.537/2017

after recording the statement of the accused under Section 313

of the Cr.P.C., afforded an opportunity to the accused to lead

defence evidence and few adjournments were also given to the

accused at his request to enable him to lead evidence. However,

such opportunities also were not utilised by the

petitioner/accused. Even as finally and as last chance also,

several opportunities were given to the petitioner which he did

not make use of.

17. The accused had made an application under Section

311 r/w Sec 91 of the Cr.P.C. to summon the Branch Manager,

Bank of India, Bangalore, which application came to be allowed

by the Trial Court and opportunity was given to him to summon

the witness from his side. It was ordered for issuing witness

summons to the said witness who was also directed to produce

account opening form and specimen signature card of the

savings bank account of the accused in his branch. However,

the accused was required to pay the process for summoning the

said witness. On the subsequent date, at the request of the

accused, witness summons was permitted to be served upon the

witness by hand. Though the witness summons was reported to

be served on the witness, however, on the next date of hearing, Crl.R.P.No.537/2017

the witness did not turn up. The matter was adjourned at the

request of the accused to 26-03-2015 and thereafter to

27-03-2015 and 30-03-2015. On all those dates, since the

witness did not turn up, the Trial Court took that the accused has

not led evidence from his side and the matter was posted to hear

the arguments from both side. The arguments of the learned

counsel for the complainant were also heard by the Trial Court

on 08-04-2015. At that time, the accused filed the second

similar application under Section 311 of the Cr.P.C. seeking

permission to lead defence evidence. However, the said

application was rejected by the Trial Court on its merit on

02-05-2015 and on the very same day, it proceeded to pass the

impugned judgment also.

18. Further, it can be seen that, even in the cross-

examination of PW-1, the accused had taken sufficient time.

Since the accused failed to utilise the opportunities given to him

to cross-examine PW-1, it was taken that the accused had not

cross-examined PW-1. It is thereafter, by filing a recalling

application, he got an opportunity to cross-examine PW-1.

Accordingly, the matter was listed for cross-examination of PW-1

on 08-12-2014. Even on the said date also, he did not cross-

Crl.R.P.No.537/2017

examine PW-1, as such, once again, it was taken that there was

no cross-examination of PW-1 from the accused's side.

Subsequently, the accused made one more similar application for

an opportunity to cross-examine PW-1, which was again allowed.

Accordingly, on 14-01-2015, he proceeded to cross-examine

PW-1. Thus, during the trial also, the accused has adopted

delay tactics.

19. However, the fact remains that the accused was

given sufficient opportunities and his earlier application filed

under Section 311 read with Section 91 of the Cr.PC. was also

allowed despite which the accused failed to make use of the

same. He was thus given an opportunity to lead defence

evidence from his side. However, the accused did not make use

of that opportunity also and proceeded to file one more similar

application when the matter was slated for arguments from both

side on the main matter.

20. The above reasoning and analysis clearly shows the

conduct of the accused that through out he has been interested

in adopting delay tactics rather than assisting the Court in the

disposal of the case on its merit. Still, the Trial Court had given Crl.R.P.No.537/2017

him sufficient opportunities to lead defence evidence after

recording the statement of the accused under Section 313 of the

Cr.P.C. and also subsequently by allowing his application filed

under Section 311 read with Section 91 of the Cr.P.C. Since the

accused failed to make use of the opportunities which was

sufficiently given to him, the Trial Court has proceeded to reject

the similar application filed under Section 311 of the Cr.P.C. and

proceeded to pass the impugned judgment.

21. Further, it can be seen that the purpose for which the

accused wanted the Bank Manager to examine as a witness was

only for the reason to show that, the signature on the cheque at

Ex.P-1 does not pertain to him. In that regard, two aspects can

be noticed. The first and foremost aspect is that the accused did

not move any application in the Trial Court seeking reference of

his signature to any handwriting expert. Secondly, the cheque at

Ex.P-1 was not dis-honoured by the banker for the reason of any

alleged difference in the signature. On the other hand, the said

cheque was dis-honoured by the banker only for the reason of

insufficiency of funds. Had really the signature on the cheque at

Ex.P-1 did not pertain to the accused or if there was any

difference in the said signature of the accused, then the banker Crl.R.P.No.537/2017

would have definitely returned the cheque with its endorsement

of mentioning that there was difference in the signature of the

drawer. Admittedly, the cheque was dis-honoured not for that

reason, but due to insufficiency of funds. Therefore, even by

rejecting the second similar application filed by the accused

under Section 311 of the Cr.P.C., no prejudice has caused to the

interest of the accused. As such, the only argument of the

learned counsel for the revision petitioner that the accused did

not get sufficient opportunity to challenge the subsequent similar

application filed under section 311 of the Cr.P.C., is not

acceptable.

22. Except the above, the learned counsel for the

petitioner/accused has not canvassed any other grounds worth

to be considered. Since the cheque at Ex.P-1 is drawn by the

accused, which has been dis-honoured for the reason of

insufficiency of funds and since the accused did not pay the

cheque amount prior to filing of the complaint by the

complainant, the presumption formed in favour of the

complainant under Section 139 of the N.I. Act has crystalised in

his favour. Resultantly, both the Trial Court as well the Sessions

Judge's Court have rightly convicted the accused and upheld the Crl.R.P.No.537/2017

conviction against the accused for the offence punishable under

Section 138 of the N.I. Act.

23. A perusal of the order of sentence also would go to

show that the Trial Court has ordered the sentence proportionate

to the gravity of the proven guilt against the accused. As such,

the impugned judgments do not warrant any interference at the

hands of this Court.

Accordingly, I proceed to pass the following:

ORDER

The Criminal Revision Petition stands dismissed as devoid

of any merit.

Registry to transmit a copy of this order to both the Trial

Court and also to the Sessions Judge's Court along with their

respective records forthwith.

Sd/-

JUDGE

BMV*