Mamtha Textiles vs Babulaljain
2022 Latest Caselaw 1512 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 02 N D DAY OF FEBRUARY, 2022

                       BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

 CRIMINAL REVISION PETITION NO.612 OF 2016

BETWEEN:

Mamtha Textiles
K.Narayanapura,
Beng aluru-560077
Represented by its
Prop: Tararamchowdhary
                                         ...Petitioner
(By Sri Pavan Kumar G., Advocate for
    Sri Prema Kumar G.A., Ad vocate)

AND:

Bab ulaljain,
Prop: M/s. Millons Fashion
Naveen Markets,
Avenue Road Cross,
Beng aluru-560002.
Rep. by its GPA Hold er.
                                       ...Respondent
(By Sri Bryen Stienberg, Advocate)

     This Criminal Revision Petition is filed under
Section 397 read with 401 of Cr.P.C., praying to set
aside the judg ment p assed by the Hon'ble LXI
Additional City Civil and Sessions Judge, Beng aluru
City in Crl.A.No.1431/2014 dated 15.03.2016 and the
judgment passed by the 15 t h ACMM, Beng aluru in
C.C.No.8523/2009 dated 25.11.2014 by allowing this
Crl.RP., and the petitioner may be acquitted.
                             :: 2 ::


     This Criminal Revision Petition coming on for
final hearing throug h video conferencing this day,
the Court mad e the following:

                            ORDER

This revision petition is filed by the accused

in C.C.No.8523/2009 on the file of the XV

Additional Chief Metropolitan Magistrate,

Bengaluru.

2. The respondent initiated proceeding

under Section 138 of the Negotiable Instruments

Act ('N.I.Act' for short) against the petitioner as

the cheque issued by him for Rs.1,15,000/- dated

18.10.2008 was dishonoured for want of sufficient

funds in the bank account of the petitioner. The

respondent issued a legal notice on 12.02.2009 by

registered post with acknowledgement due and

certificate of posting, demanding repayment of the

cheque amount. Since the petitioner did not

comply with the demand, he initiated action.

:: 3 ::

3. The trial Court after appreciating the

evidence both oral and documentary, found the

petitioner guilty of the offence under Section 138

of N.I.Act, sentenced him to pay fine of

Rs.1,25,000/- with default sentence of six months

imprisonment. The trial Court ordered to pay a

sum of Rs.1,20,000/- to the respondent by way of

compensation out of the fine amount. Aggrieved

by the judgment of conviction, the petitioner

preferred an appeal before the Sessions Court and

the appellate Court by its judgment dated

15.03.2016 dismissed the appeal and hence this

revision petition.

4. Heard Sri Pavan Kumar G, Advocate on

behalf of Sri Prema Kumar G A, counsel for the

petitioner and Sri Bryen Stienberg, counsel for the

respondent.

5. It was the argument of Sri Pavan Kumar

G, that the trial Court as well as the appellate :: 4 ::

Court have not considered two aspects, namely,

that in Ex.P.2, the cheque in question, there is

interpolation. The number '11' appears to have

been inserted behind the number '5'. Actually the

cheque was issued for Rs.5,000/- and the

respondent made it as Rs.1,15,000/- by inserting

the number '11'. The contents of the cheque are

not in the handwriting of the petitioner. Inspite of

this aspect being brought to the notice of the trial

Court, it has not given any finding and therefore

there is irregularity in appreciation of the material

evidence. The second point that he has argued is

that the demand notice issued by the respondent

as per Ex.P.4 was not served on the petitioner.

The respondent has produced postal

acknowledgment as per Ex.P.5 to show that it was

served on the petitioner. But the petitioner has

disputed his signature on the postal

acknowledgment. This was one of the contentions

taken by the petitioner and the trial Court has not :: 5 ::

given finding on it. He further argued that even

the appellate Court has not re-appreciated the

evidence and in this view the interest of the

petitioner has been affected. Hence this revision

petition is liable to be allowed.

6. Sri Bryen Stienberg, counsel for the

respondent submits that the trial Court has

properly appreciated the evidence. He takes me

through para 15 of the judgment of the trial Court

to argue that the trial Court has considered all the

documents and has appreciated the evidence

correctly. Actually the petitioner is a businessman

and was regularly purchasing clothes from the

respondent and in connection with one such

transaction, he issued a cheque for Rs.1,15,000/-.

Ex.P.2 does not contain any interpolation as

argued by the counsel for the petitioner. He

further argued that the notice issued by the

respondent before initiating action under Section :: 6 ::

138 of N.I.Act was served on the petitioner. He

further argued that even otherwise, after the

petitioner received summons from the trial Court

nothing prevented him from complying with the

demand as per the ratio laid down by the Hon'ble

Supreme Court in the case of C.C.ALAVI HAJI VS.

PALAPETTY           MUHAMMED                AND       ANOTHER

[2007(6) SCC 555].            Therefore it is his argument

that this revision petition is devoid of merits and it

is to be dismissed.

7. I have considered the arguments.

8. The petitioner's counsel has raised two

points. Firstly with regard to interpolation in the

cheque Ex.P.2, it is to be stated that if the

judgment of the trial Court is perused, it is found

that the learned Magistrate has considered this

aspect of the matter. What is held is that while

cross-examining PW.1, a suggestion was given

that figure '11' was inserted behind number '5' :: 7 ::

and that PW.1 denied that suggestion. Except this

suggestion, there is nothing on record to show

that the cheque was issued for Rs.5,000/-. It is

further observed that if according to the

petitioner, the respondent manipulated the

cheque, he could have given an intimation to bank

to stop payment.

9. Now if Ex.P.2 is perused, a sum of

Rs.1,15,000/- is written both in words and figures.

The petitioner admits the signature on the cheque

and does not dispute the sum written in words.

But the argument of the learned counsel for the

petitioner is that the cheque was filled up by

somebody else. This argument is difficult to be

accepted, because once the petitioner admits his

signature on the cheque, it does not matter if the

cheque is filled up by somebody else.

10. So far as service of notice is concerned,

the petitioner does not dispute the address written :: 8 ::

on the postal cover. Postal acknowledgment

contains signature in Hindi. If the petitioner does

not dispute the address and if the postal

acknowledgment was returned after due service, it

is deemed that the petitioner received the notice.

Moreover as has been argued by Sri Bryen

Stienberg, it is held by the Supreme Court in the

case of C.C.Alavi Haji (supra) that once notice is

sent by registered post by correctly addressing the

drawer of the cheque, the service of notice is

deemed to have been effected. It is held that

within 15 days of the receipt of summons from the

Court, the accused can make payment and insist

on rejection of complaint in case he disputes the

service of demand notice.

11. In this revision petition there is no scope

for re-appreciation of evidence. The trial Court as

also the appellate Court have properly appreciated

the evidence. I do not find any infirmity in the :: 9 ::

findings given by both the Courts below. Hence,

this revision petition fails and it is dismissed.

The order dated 28.04.2016 passed by this

Court while suspending the sentence merges with

this final order and the respondent can only

enforce the sentence of fine imposed by the trial

Court in case the petitioner fails to pay the fine

amount.

SD/-

JUDGE

Kmv/PGG/-