Mr. T.R.S. Kumar vs M.R.K. Murthy
2022 Latest Caselaw 10270 Kant

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 05TH DAY OF JULY, 2022

                       BEFORE:

           THE HON'BLE MR. JUSTICE P.N.DESAI

    CRIMINAL REVISION PETITION No.493 OF 2013

BETWEEN:

MR. T.R.S KUMAR
S/O T.R. RAJAPPA,
AGED ABOUT 50 YEARS,
#23, RMV 2ND STAGE,
JALADARSHANI LAYOUT,
NEW BPL ROAD,
BANGALORE- 560 054.
                                         ...PETITIONER

(BY SRI. SURESH SUBBAIAH.,ADVOCATE)

AND:
M.R.K MURTHY
S/O M.S RAJESHWAR RAO,
AGED ABOUT 65 YEARS
R/AT NO.240/6, 19TH CROSS,
20TH MAIN, VIJAYANAGAR,
BANGALORE-40.
                                      ...RESPONDENT
(BY SRI. C.P. DHANANJAYA.,ADVOCATE)

       THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 AND 401 CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT AND SENTENCE DATED 04.05.2013 PASSED BY THE
P.O.,F.T.C.-I,BANGALORE CITY IN CRL.A NO.492/2012 AND
JUDGMENT AND SENTENCE DATED 19.07.2012 PASSED BY THE
XV A.C.M.M., BANGALORE IN C.C.NO.14875/2005.
                            -2-


     THIS CRIMINAL REVISION PETITION IS COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-

                         ORDER

This revision petition is filed by the petitioner

challenging the judgment of conviction and order of

sentence dated 04.05.2013 passed in Crl.A.No.492/2012

by the Fast Track-I, Bangalore City, wherein the judgment

of conviction and order of sentence passed by XV Addl.

Chief Metropolitan Magistrate in C.C.No.14875/2005 dated

19.07.2012 is affirmed, wherein the petitioner was found

guilty for the offence punishable under section 138 of the

Negotiable Instruments Act, (for short hereinafter referred

as 'N.I. Act') and was sentenced to pay a fine of

Rs.1,50,000/-, in default to undergo simple imprisonment

for four months.

2. The complainant filed a complaint before the trial

court alleging that the complainant and the accused are

known to each other for past 10 years. In the month of

April 2003, the accused approached the complainant for

financial help and borrowed a hand loan of Rs.45,000/- in

the first week of April 2003 and promised to repay the said

amount within two years. Again the accused borrowed a

hand loan of Rs.70,000/- and Rs.25,000/- from the

complainant in month of July 2004. Thereafter, the

accused issued two cheques dated 10.08.2004 for

Rs.1,20,000/- and Rs.20,000/- dated 12.08.2004 drawn

on Sri. Tyagarajanagar Co-operative Bank, N.R. Colony,

Bengaluru. The accused promised that he would raise loan

from the bank and repay the amount and requested the

complainant to present the cheques after due date. As per

the instructions of the accused, the cheques were

presented through his banker-Corporation Bank, N.T.

Road, Bangalore on 12.08.2004, but the cheque was

returned with an endorsement 'insufficient funds' in the

account'. The accused again requested the complainant to

present the cheque, again it was returned with an

endorsement 'insufficient funds'. Therefore, inspite of

intimation, when the amount was not paid, the

complainant issued legal notice dated 06.12.2004

demanding the amount. Accused refused to receive the

said notice and it was returned with shara 'not claimed'.

Notice was sent through under certificate of posting also.

As the amount was not repaid by the accused, the

complainant presented a complaint to the Court.

3. Thereafterwards, the complainant got examined

himself as PW-1 and got marked nine documents as Exs-

P1 to P9. Then the statement of the accused as required

under section 313(1)(b) Cr.P.C. was recorded wherein the

accused has denied the evidence in toto and the accused

led defence evidence as DW-1 and got marked five

documents as Ex-D1 to Ex-D5. After hearing the

arguments, learned magistrate found the accused guilty

and convicted the accused. Aggrieved by the same, the

accused preferred criminal appeal, which also came to be

dismissed by the impugned order which is now challenged

before this Court.

4. I have heard learned counsel for the petitioner

Sri. Suresh Subbaiah and Sri. C.P. Dhananjaya, learned

counsel for the respondent.

5. Learned counsel for the petitioner argued that

earlier there were cases filed by the daughter of the

complainant wherein this complainant himself represented

her as Power of Attorney Holder. In that case, there is an

order of conviction. Infact, according to the learned

counsel, the two cheques in question were issued in favour

of the complainant in relation to C.C.No.36118/2002.

Learned counsel further argued that though the

complainant had received the amount, but receipt is

obtained only in respect of Rs.1.00 lakh and for the

remaining amount, receipt was not received by the

accused and the other case ended in conviction. Therefore,

he preferred criminal appeal which also came to be

dismissed. Therefore, learned counsel argued that when

the relationship of the complainant and the accused is

strained and when there is also conviction order hanging

on him, question of the petitioner requesting the

complainant to pay the amount does not arise. Infact, the

petitioner has led his defence evidence and produced the

receipt. The complainant even went to the extent of

denying his signature on it. Thereafterwards, an

handwriting expert was appointed and it was found that

the signature appearing on Ex-D1 is that of the

complainant itself. Therefore, by misusing the cheque

which were given for settlement of that case, the

complainant has filed this complaint on false ground.

Learned counsel also argued that the legal notice was not

properly served on the petitioner/accused. Therefore,

learned counsel argued that the trial court as well as

appellate court without considering the evidence in this

regard, when there is failure on the part of the

complainant to show that when the amount was given to

the accused and when there is no evidence to show that

when the notice is served, both the courts ought to have

accepted the version of the petitioner and acquit the

accused by dismissing the complaint.

6. Against this, learned counsel for respondent

argued that both the courts have rightly appreciated the

evidence and considering the presumption arising out of

section 139 of N.I. Act and as the cheque is admittedly

belonging to the account of the petitioner and as he has

admitted his signature and as the notice is sent to the

address which is admittedly the address of the petitioner,

both the courts have held regarding proper service of

notice. Therefore, learned counsel supported the judgment

of both the courts and prayed to reject the revision

petition.

7. From the above material, the point that arise for

consideration is:-

"Whether the order passed by learned Fast Track Judge in affirming the judgment of conviction and order of sentence passed by learned Addl. CMM in C.C.No.14875/2005 is correct, legal or needs any interference by this Court?"

8. Admittedly, both the courts have come to a

concurrent finding that the complainant has proved the

ingredients of section 138 of N.I. Act. Both the courts have

found that the defence of the accused is not justifiable

one. Though this Court in a revision cannot discuss the

evidence on record being a revisional court, but to find out

the correctness and legality, I have also gone through the

evidence which is available before Court.

9. The respondent complainant filed a written

complaint regarding issuance of cheque and borrowing the

amount by the accused. According to the complainant, in

the year 2003, two cheques were issued by the accused

one for Rs.1,20,000/- and another for Rs.20,000/-. In his

oral evidence which is the sworn statement, he has

reiterated the same. Ex-P1 is the complaint. Ex-P2 and P3

are the two cheques which shows that said cheques were

issued in favour of the complainant M.R.K. Murthy by the

accused. Ex-P4 and Ex-P5 are the memos of the bank

wherein, they shows that the cheques were returned

without encashment for the reasons 'funds insufficient' in

the account. Ex-P6 is the legal notice dated 06.12.2004,

wherein the complainant has narrated the contents of the

complaint and demanding of the said amount. Ex-P7 is the

postal receipt and Ex-P8 is the receipt of under certificate

of posting. Ex-P9 is the original legal notice and Ex-P(a) is

the signature of the complainant. So this is the oral and

documentary evidence of the complainant-PW-1. Accused

has cross-examined this PW-1. It is suggested that the

accused being a PWD contractor used to borrow money

and used to return the amount with interest. He has

further stated that the accused used to give the cheques.

It is suggested that as a security for the loan borrowed

from his daughter, these cheques were given by the

accused. He has admitted about filing of a case in

C.C.No.36188/2002 by his daughter as a GPA holder. But

he has denied the suggestion that the cheques which were

given as security in respect of that case were misused and

a false case has been filed. In the further cross-

examination, it is elicited that the complainant was

working as a Lab Assistant in Government Science College,

Bengaluru and he retired during July 2004 by giving

VRS(voluntary retirement scheme). That itself shows that

he has received lumpsum amount after taking VRS. Even

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earlier part of cross-examination also shows that the

accused used to borrow money from the complainant

many a times and return it by issuance of cheques. It is

suggested that accused has not produced any bank

statement of Corporation Bank to show that he has paid

Rs.45,000/-. Some suggestions were made that he has

promised to withdraw the case after payment of Rs.1.00

lakh in cash and Rs.1,20,000/- in cheque, but he has not

returned the said cheque, which he has denied it. It is

suggested that Ex-P2 cheque was issued by the accused

for payment of fee of his Advocate at the time of

settlement, which is also not denied. It is suggested that

the accused was residing since last one and half years in

R.T. Nagar.

10. On perusing the oral and documentary evidence,

it is evident that the petitioner/accused admits issuance of

cheque and also signature. Of course, he has made

suggestion that it is for the sake of security in respect of

C.C.No.36188/2002, but nowhere such records are

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forthcoming to show that the accused has given the

cheque in respect of those cases. On the other hand,

admittedly, as stated, the petitioner/accused has obtained

a receipt in respect of amount which was given by him

through cash, but no receipts were obtained by him in

respect of those cheques.

11. If at all the two cheques shown in this case were

given in respect of transaction in other cases, said cheque

numbers and the amount transacted would have been

mentioned in the receipt, but the details of such

transaction are not found. Therefore, under sections 118

and 139 of N.I. Act, presumption arises in favour of the

complainant. Of-course, that presumption is rebuttable

presumption. The accused can rebut that presumption by

two methods one by cross-examining the complainant and

show before the court that the evidence adduced by the

complainant is not acceptable and legal, so that the

presumption raised can be rebutted. Second method is by

leading his defence. Of-course, the requirement of proof by

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the accused is not that as in a criminal case that is beyond

reasonable doubt, but based on preponderance of the

case.

12. In the light of these principles, if the evidence of

the complainant is considered, then it is evident that the

complainant has issued legal notice immediately after

dishonour of the cheque and said legal notice Ex-P6, Ex-P7

postal receipt and Ex-P8 Under certificate of posting go to

show that said notice was sent to the address of the

petitioner/accused. Of-course, if the petitioner/accused

had resided in some other address when the evidence was

being recorded, the same is of no consequence. On the

other hand, as per The General Clauses Act, 1897, if once

notice is issued to the correct address of the addressee by

way of registered post or by way of certificate of posting,

then presumption is in favour of the due service of notice.

The postal endorsement also shows that intimation was

delivered, but it was unclaimed. It is settled principles of

law that when the notice is served through certificate of

posting and returned with postal shara 'not claimed',

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intimation 'unclaimed' is sufficient for service of notice.

There is nothing in the cross-examination to show that

these cheques were misused. On the other hand, when

once the complainant is able to discharge his initial burden

coupled with presumption in his favour, then onus shifts on

the accused.

13. The accused has given his evidence as DW-1. In

his evidence, he has deposed about the cases filed by the

daughter of the complainant against him and that the

other cases was compromised and he has taken receipt for

having paid Rs.1.00 lakh by cash. But it appears, said

receipts were not produced and that matter also ended in

conviction. The revision petition filed by the accused came

to be dismissed. According to the accused, two cheques

which were given by him at the time of compromise in

respect of other cases were misused. If that is the case,

such defence ought to have been taken by him. In the

other cases also, if at all the accused had paid the amount

through cheque, there was no difficulty for him to bring

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the same to the notice of the court in that case. But no

such records are forthcoming and no steps were taken by

the accused, if at all these cheques were misused by the

complainant.

14. Examination-in-chief of accused shows that these

cheques were issued by him, but according to him, they

were in respect of the other cases. His cross-examination

shows that the accused is residing in the same address as

shown in the address-Ex-P6 at the time of issuance of

notice and as on the date of his deposition. Accused has

admitted that he has not taken any steps or lodged any

complaint against the daughter of the complainant for

misuse of the cheque stated to have been given by him.

Accused kept quiet. Even accused has not examined the

person/advocate to whom Rs.20,000/- was to be paid as

fee. No such defence is let in. Accused has not produced

any document so show that he is not residing in the said

address. Accused has admitted that he is doing civil

contract work and if at all he came to know that the

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cheques which were issued by him were misused in the

year 2002 itself, no steps were taken by him. On the other

hand, he has clearly admitted that for the last 10 years, he

was borrowing the amount from the daughter of the

complainant and complainant used to be present there.

Therefore, his cross-examination clearly indicates that he

was in the habit of borrowing the amount from the

complainant and his daughter. Ofcourse, simply because

criminal case was filed by the daughter and there were

settlement talks in respect of settlement in that case, that

does not mean that there was no occasion for the accused

to borrow. On the other hand, no such contention is taken

in that case filed by the daughter, nor any records were

produced either in the appellate court or in this Court. If at

all, the accused had paid certain amounts and had issued

the cheques, he would have very well obtained receipt as

he has obtained receipt for Rs.1.00 lakh as stated above.

That itself shows that the accused has taken false defence

only for the sake of defence. On the other hand, any

amount of denial will not rebut the presumption which is

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legally arising in favour of the complainant. On the other

hand, when Court notice is served when the complainant

filed the complaint and the accused appeared before the

court, it is the duty of the accused to place on record the

reply to the said notice when he came to know that such

notice was not issued to the address. But he has not

chosen to do so.

15. Therefore, in view of the presumption arising

under section 139 and also under section 118 of N.i. Act

and also in view of the General Clauses Act regarding

service of notice, if the present judgment of Fast Track

Court is considered, then it is evident that the learned

Sessions Judge has in detail given reasons. Simply

because the complainant denied his signature on Ex-D1,

which is proved to be his signature only, it cannot be said

that his entire complaint is false in this case. The receipt

which was produced by the accused is pertaining to the

case which the daughter of the complainant had lodged. If

at all he has paid full amount by issuing these two

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cheques, then question of he being convicted does not

arise. Therefore, both the courts have found that the

accused has failed to rebut the presumption arising in

favour of the complainant under N.I. Act. The concurrent

findings of both the courts cannot be said as either illegal

or arbitrary or not based on sound principle regarding

appreciation of evidence in dishonour of cheques which are

popularly called as 'cheque bounce cases'. Both the courts

have referred to the oral and documentary evidence and

after proper appreciation of evidence have come to the

conclusion that the accused has failed to proved his case.

Therefore, I find no merit in the revision petition.

Accordingly, I pass the following:

ORDER

1. The revision petition is dismissed.

2. No order as to costs.

Sd/-

JUDGE *mn/-