S A Rahim vs H G Panchaksharappa
2022 Latest Caselaw 8178 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 6TH DAY OF JUNE 2022

                            BEFORE

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

   CRIMINAL REVISION PETITION No.585 OF 2017

BETWEEN:

S.A.Rahim,
S/o S.A.Alim,
Aged about 52 years,
Prop. Sadath Enterprises,
Holalur,
Holalur Post-577 216,
Shivamogga Taluk & District.                    .. Petitioner

 ( By Sri P.N.Harish, Advocate )

AND:

H.G.Panchaksharappa,
S/o Chandrashekarappa,
Aged 55 years,
Agriculturist,
R/o Haramaghatta-577 216,
Shivamogga Taluk & District.                    .. Respondent

 ( By Sri J.D.Kashinath, Advocate )

      This Criminal Revision Petition is filed under Section 397
of Cr.P.C. praying to call for entire records and to set aside the
judgment and order passed by the III Addl.Sessions Judge,
Shivamogga in Crl.Apl.No.221/2015 dated 09.01.2017 and the
judgment and order of conviction passed by the JMFC-II,
Shivamogga in C.C.No.511/2014 dated 25.06.2015 and thereby
acquit the petitioner by allowing this revision petition and to
pass such other suitable order as this Hon'ble Court deems it
                                               Crl.R.P.No.585/2017
                              2


appropriate in the admitted facts and circumstances of the case
in the interest of justice.

      This Criminal Revision Petition is coming on for Final
Hearing/reporting settlement, through Physical Hearing/Video
Conferencing Hearing, this day the Court made the following:

                           ORDER

The present petitioner was accused in

C.C.No.511/2014, in the Court of the learned J.M.F.C.-II,

Shivamogga, (hereinafter for brevity referred to as the

"trial Court"). By its judgment dated 25.06.2015, the trial

Court convicted the accused for the offence punishable

under Section 138 of Negotiable Instruments Act, 1881

(hereinafter for brevity referred to as `N.I.Act') and was

sentenced accordingly.

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

trial Court was that the accused was his friend and at the

request of the accused in order to meet his family

domestic needs and also for the purpose of paddy and

maize business, he gave him a hand loan of a sum of

`3,50,000/- on 10.01.2013. The accused agreed to repay

the said amount within two months thereafter.

Crl.R.P.No.585/2017

When repayment of the amount was demanded, the

accused issued a cheque bearing No.908164, dated

14.03.2013, drawn on Corporation Bank, B.H.Road,

Shivamogga, for a sum of `3,50,000/- in favour of the

complainant. When the cheque was presented by the

complainant through his banker for its realisation, the

same came to returned unpaid with the banker's

endorsement "funds insufficient". It is thereafter the

complainant got issued a legal notice dated 12.04.2013 to

the accused both under Registered Post Acknowledgement

Due and through courier. The notice sent under

Registered Post Acknowledgement Due was returned

unserved, however, the notice sent through courier was

received by the accused. Still the accused did not pay the

cheque amount which constrained the complainant to

institute a criminal case against the accused in the trial

Court in C.C.No.511/2014 for the offence punishable under

Section 138 of N.I.Act.

Crl.R.P.No.585/2017

3. Since the accused pleaded not guilty, charges were

framed against the accused for the alleged offences.

4. The complainant in order to prove his case, got

examined himself as PW-1 and got marked six documents

from Exs.P-1 to P-6. On behalf of the accused, neither any

witness was examined nor any documents were marked.

5. After hearing both side, the trial Court by its

impugned judgment dated 25.06.2015, convicted the

accused for the offence punishable under Section 138 of

N.I.Act and sentenced him accordingly.

6. Challenging the said order, the accused

preferred an appeal in Criminal Appeal No.221/2015,

before the learned III Addl.Sessions Judge, Shivamogga,

(hereinafter for brevity referred to as `Sessions Judge's

Court), which by its judgment dated 09.01.2017,

dismissed the appeal by confirming the judgment of

conviction passed by the trial Court. It is against these

judgments of conviction, the accused has preferred this

revision petition.

Crl.R.P.No.585/2017

7. The respondent is being represented by his

learned counsel.

8. Records from the trial Court and Sessions

Judge's Court pertaining to the matter were called for and

the same are placed before the Court.

9. Stating that the matter would be settled,

adjournments were taken by the petitioner, however, it

was submitted today that the petitioner is not settling the

matter. Hence, the matter was proceeded further.

10. Heard the arguments of learned counsel for the

petitioner. Perused the materials placed before this Court.

11. The only point that arises for my consideration

is,-

"Whether the impugned judgments suffer from perversity, illegality, impropriety warranting any interference at the hands of this Court".

12. The learned counsel for the petitioner in his brief

argument submitted that no reasonable opportunity was

given to the accused in the trial Court to cross-examine Crl.R.P.No.585/2017

PW-1. He further submitted that there is no valid service of

notice. The registered post sent to the accused has not

been delivered to the accused. Further there is no proof to

show that the notice sent under courier has been delivered

to the accused. As such, in the absence of any valid notice,

the judgment of conviction does not stand.

13. Learned counsel for the respondent is neither

present physically nor through Video Conference.

14. The complainant got himself examined as PW-1,

who in his examination-in-chief filed in the form of affidavit

evidence has reiterated the contentions taken up by him in

his complaint. He has produced the original cheque alleged

to have been given to him by the accused towards the

alleged repayment of the loan at Ex.P-1. He has produced

the banker's endorsement at Ex.P-2, which shows that the

cheque has been returned unpaid for the reason of

insufficiency of funds. To show that a notice has been sent

to the accused, the complainant has produced a copy of the

notice at Ex.P-3, the registered post receipt at Ex.P-4, the Crl.R.P.No.585/2017

courier acknowledgement for receipt of consignment for

delivery at Ex.P-5 and the returned registered postal cover

at Ex.P-6.

15. The notice at Ex.P-3 mentions that the accused

has availed a loan of `3,50,000/- from the complainant on

10.01.2013, agreeing to repay the same within two

months. Towards the repayment of the loan, the accused

is shown to have issued the cheque in question in favour of

the complainant, which when presented for realisation is

said to have been returned for the reason of insufficiency of

funds. Alleging these, the complainant had issued a notice

demanding the payment of cheque amount from the

accused. The said notice is said to have been sent to the

accused through Registered Post Acknowledgement Due

under the postal cover which is at Ex.P-6. The postal

receipt at Ex.P-4 shows that such a notice has been sent

through registered post. The returned postal cover go to

show that in spite of tendering the notice to the addressee

for not less than a week, the said addressee has not Crl.R.P.No.585/2017

received the said notice, as such, the notice has been

returned to the sender. In that view of the fact, it is not

the case of the accused that the address shown in the

registered post was not his address and also that the notice

was not tendered to him, but, the undisputed and undenied

evidence of PW-1 go to show that despite sending the

notice under registered post, he did not collect the same.

Thus, where a notice is sent to the correct address of the

addressee through post, for his non-collection of the notice,

it cannot be held that the notice was not served upon the

addressee. Since the addressee has not received the notice

despite repeated tendering of the notice by the postal

authorities to him, there is deemed service of notice upon

him. Therefore, even though the acknowledgement for

having delivered the notice sent under courier has not been

produced by the complainant, but, only has produced the

courier acknowledgement for having taken the article for

dispatch as per Ex.P-5, still, the registered post article and

the analysis made above go to show that there is valid

service of notice upon the accused. As such, the argument Crl.R.P.No.585/2017

of learned counsel for the petitioner that there was no valid

service of notice upon the accused is not acceptable.

16. In view of the fact that the cheque in question at

Ex.P-1 has not been denied or disputed by the accused

that it is drawn by the accused in favour of the

complainant and Ex.P-2 proves that the said cheque has

been returned unpaid due to the reason of insufficiency of

funds in the account of the accused and also in view of the

fact that, as analysed above, there is issuance of notice by

the complainant to the accused and in view of the admitted

fact that the amount demanded in the notice, which is the

cheque amount, has not been paid by the accused to the

complainant, a presumption under Section 139 of N.I.Act

forms in favour of the complainant. However, the said

presumption is rebuttable.

In order to rebut the presumption, the accused who

could have cross-examined the complainant and entered

himself to the witness box or examined any of the

witnesses on his side or produced any documents, has not Crl.R.P.No.585/2017

chosen to do any of these acts. The entire evidence of

PW-1 has remained undenied and undisputed.

17. No doubt, learned counsel for the petitioner as

his final point of argument contended that no reasonable

opportunity was given to the accused to cross-examine

PW-1, however, a perusal of the order sheet of the trial

Court, which are placed before this Court, would go to show

that after the evidence of PW-1, he was recalled at the

application of the accused on 25.03.2015, however, by

imposing a cost. In spite of the same, even though PW-1

was present in the Court on 12.06.2015, the accused had

remained absent and he did not cross-examine him.

Thereafter, when the matter stood adjourned for three

different dates of hearing i.e., 12.06.2015, 18.06.2015 and

22.06.2015, the accused made no attempt to get the PW-1

recalled again and to cross-examine him. In such an

event, when the accused has neither cross-examined PW-1

nor led any evidence from his side, the undenied evidence

of PW-1, which is further corroborated with Exs.P-1 to P-6, Crl.R.P.No.585/2017

go to show that the accused has proved the alleged guilt

against the accused.

18. It is analysing the evidence placed before them in

their proper perspective, both the trial Court, as well as

the Sessions Judge's Court have convicted and confirmed

the conviction of the accused for the offence punishable

under Section 138 of N.I.Act respectively.

19. It is the sentencing policy that the sentence

ordered should not be either exorbitant nor for name sake

for the proven guilt. It must be proportionate to the guilt

for which the accused is found guilty of.

In instant case, the petitioner/accused is convicted

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

and is sentenced to pay fine of `3,60,000/- and in default

of payment of fine, to undergo simple imprisonment for a

period of six months. Since in the light of the facts and

circumstances of the case, the sentence ordered by the

trial Court and confirmed by the Sessions Judge's Court Crl.R.P.No.585/2017

being proportionate to the gravity of the proven guilt

against the accused, I do not find any infirmity to interfere

in the impugned judgments.

20. Accordingly, I proceed to pass the following

order:

ORDER

The Criminal Revision Petition is dismissed as

devoid of merits.

Registry to transmit a copy of this order to both the

trial Court as also the Sessions Judge's Court along with

their respective records forthwith.

Sd/-

JUDGE

bk/