Srinivas vs K V Shreekanta
2022 Latest Caselaw 8617 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 13TH DAY OF JUNE, 2022

                             BEFORE

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

         CRIMINAL REVISION PETITION NO.402 OF 2013

BETWEEN:

SRINIVAS
S/O MANJAPPA NAYAK
(WRONGLY SHOWN AS NANJAPPA
NAYAK IN APPELLATE COURT JUDGEMENT)
R/AT NO.71/4, 9TH CROSS
NEAR SRI. KRISHNA CONDIMENTS
GANGADHARAPPA GARDEN
SHIVANANDA NAGARA
JARAGANAHALLI
J.P. NAGAR, 6TH PHASE
BANGALORE - 78.
                                          ... PETITIONER

(BY Sri. RAVI L. VAIDYA, ADVOCATE)

AND:

K.V. SHREEKANTA
AGED ABOUT 50 YEARS
S/O K. VASAPPA GOWDA
R/AT NO.8, POORNASHREE
35TH MAIN, 7TH CROSS
SARAKKI GARDEN
BEHIND TRISHUL SCHOOL
J.P. NAGARA 6TH PHASE
BANGALORE - 78.                          ... RESPONDENT

(BY SRI. NAGENDRA C.S., ADVOCATE FOR RESPONDENT)
                                                        Crl.RP.No.402/2013
                                      2



        THIS   CRIMINAL     REVISION        PETITION      IS   FILED    UNDER
SECTIONS 397 R/W. 401 CR.P.C. PRAYING TO SET-ASIDE THE
JUDGMENT       OF    CONVICTION   AND       SENTENCE      DATED:21.01.2012
PASSED BY THE XIII A.C.M.M., BANGALORE IN C.C.NO.25566/2009
AND SET ASIDE THE JUDGMENT DATED:27.08.2012 PASSED BY THE
ADDITIONAL       SESSIONS      JUDGE,       F.T.C.-XIV,    BANGALORE,        IN
CRL.A.NO.101/2012 AND ACQUIT THE ACCUSED/PETITIONER IN THE
SAID C.C.NO.25566/2009 ON THE FILE OF THE XIII A.C.M.M.,
BANGALORE.


        THIS   CRIMINAL     REVISION        PETITION      COMING       ON   FOR
HEARING, THROUGH PHYSICAL HEARING / VIDEO CONFERENCING
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:


                               ORDER

The present petitioner as the accused was tried by the

Court of the learned XIII Additional Chief Metropolitan

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

"trial Court") in C.C.No.25566/2009, for the offence punishable

under Section 138 of the Negotiable Instruments Act, 1881

(hereinafter for brevity referred to as the "N.I. Act") and the trial

Court by its judgment dated 21.01.2012 has convicted the

accused for the said offence and sentenced him to pay fine of Crl.RP.No.402/2013

`1,05,000/-, and in default, to undergo simple imprisonment for

one year.

Aggrieved by the same, the accused preferred a Criminal

Appeal in the Court of the learned Additional Sessions Judge,

Fast Track Court-XIV, Bangalore, (hereinafter for brevity referred

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

No.101/2012.

The appeal was contested by the respondent who was the

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

judgment dated 27-08-2012 dismissed the appeal, confirming

the judgment of conviction and sentence passed by the trial

Court.

Aggrieved by the said judgments, the accused has

preferred this revision petition.

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

Court was that, the accused being a known person to him, had

availed loan amount of `1,00,000/- in the month of February

2009, for the purpose of solving his domestic problem. He had Crl.RP.No.402/2013

agreed to repay the said loan amount within six months.

Accordingly, the complainant had given him a hand loan of a

sum of `1,00,000/- on 10.02.2009. Since the accused did not

repay the loan amount within the agreed time, the complainant

demanded him for repayment of the loan, for which the accused

issued him a cheque bearing No.669311 dated 02.07.2009 for a

sum of `1,00,000/- drawn on Thyagaraja Co-operative Bank

Limited, K.R. Road, Banashankari II Stage, Bengaluru, in favour

of the complainant. When the said cheque was presented for its

realisation by the complainant, it was returned unpaid by the

banker with the shara of 'insufficiency of funds'. Immediately

thereafter, the complainant got issued a legal notice to the

accused both under registered post acknowledgment due as well

under certificate of posting calling upon him to pay the cheque

amount. Despite the service of notice, since the accused did not

pay the cheque amount, the complainant was constrained to

institute a criminal case against him in the trial Court in

C.C.No.25566/2009 for the offence punishable under Section

138 of N.I. Act.

Crl.RP.No.402/2013

3. The accused appeared before the trial Court through his

counsel and was released on bail. Plea of the accused was

recorded under Section 138 of N.I. Act. He pleaded not guilty

and claimed to be tried.

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

examined himself as PW-1 and got marked nine documents from

Ex.P-1 to Ex.P-9. On behalf of the accused, accused got himself

examined as DW.1 and got marked three documents from

Ex.D-1 to Ex.D-3.

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

judgment dated 21.01.2012, convicted the accused for the

offence punishable under Section 138 of N.I. Act and sentenced

him to pay fine of `1,05,000/-, and in default, to undergo simple

imprisonment for one year.

6. Challenging the said order, the accused has preferred

an appeal in Criminal Appeal No.101/2012, before the Sessions

Judge's Court', which by its judgment dated 27.08.2012,

dismissed the appeal by confirming the judgment of conviction Crl.RP.No.402/2013

passed by the trial Court. It is against these judgments of

conviction, the accused has preferred this revision petition.

7. The respondent is being represented by his learned

counsel.

8. Records from the trial Court and the Sessions Judge's

Court pertaining to the matter were called for and the same are

placed before this Court.

9. Heard the arguments of learned counsel from both

side. Perused the materials placed before this Court.

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

henceforth referred to as per their rankings before the trial

Court.

11. After hearing the learned counsel for the parties, the

only point that arises for my consideration in this revision

petition is:

Crl.RP.No.402/2013

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

12. Learned counsel for the petitioner / accused, in his

arguments, submitted that the cheques which were given at the

demand of the complainant as a security while availing a loan of

`20,000/- was misused by the complainant by not returning

those cheques even after repayment of the said loan amount. In

that regard, a police complaint was also filed by the accused as

per Ex.D1. However, both the trial Court as well as Sessions

Judge's Court have not considered the said aspect. He further

submitted that there was no service of legal notice upon the

accused, as such, the ingredients of Section 138 of N.I. Act has

not been fulfilled. Contending that the accused has created a

serious doubt in the alleged financial capacity of the complainant

to lend such a huge amount as loan, that too being a

Government servant, the presumption drawn in favour of the

complainant has rebutted, the learned counsel prays for allowing

the petition.

Crl.RP.No.402/2013

13. Per contra, learned counsel for the respondent /

complainant, in his very brief argument, has submitted that the

accused not taking any action at the earliest point of time during

the years 2005-2009 either in giving stop payment instructions

to his banker or giving any notice to the complainant calling for

return of those alleged four cheques would itself go to show that

the defence of the accused is untenable, as such, both the trial

Court and Sessions Judge's Court have rightly held that that the

complainant has proved the alleged guilt against the accused

beyond reasonable doubt.

14. In order to substantiate his contentions, the

complainant got examined himself as PW1 wherein he reiterated

the contention put forth by him in the memorandum of petition.

In his support, he produced the original returned cheque at

Ex.P1, the banker's endorsement at Ex.P2, copy of the legal

notice at Ex.P.3, two postal receipts at Ex.P4 and Ex.P5,

certificate of posting at Ex.P6, postal acknowledgment card at

Ex.P7. He was subjected to a detailed cross-examination from

the accused side wherein he adhered to his original version.

Crl.RP.No.402/2013

15. The accused got himself examined as DW.1 wherein

he has taken a contention that, at no point of time, the loan of

`1,00,000/-, as alleged by the complainant, was ever taken by

him. However, he submitted that the cheque in question

pertains to the year 2006, but not to the year 2009 when it was

presented. He also took the defence that, at the time of availing

a sum of `30,000/- as loan from the complainant, he had given

four post-dated cheques to the complainant as demanded by

him. Even though he has repaid `20,000/- retaining the balance

of `10,000/- only, the complainant did not return those

cheques. On the other hand, he had misused one of them by

presenting the same to the Court by duly filling it by himself and

thus, the present case has come into existence. He specifically

contended that no notice was served upon him after the

dishonour of the cheque. He too was subjected to cross-

examination wherein he adhered to his original version.

16. It is not in dispute that the accused and the

complainant are known to each other. Nowhere the accused has Crl.RP.No.402/2013

taken the contention that the complainant was unknown to him.

On the other hand, the accused himself as DW.1 stated that he

had availed a loan of `30,000/- from the complainant (at other

place, he had said that the loan amount was `20,000/- only).

Thus the accused himself has shown that the complainant was a

person acquainted with him.

17. The cheque at Ex.P1 is admittedly drawn by the

accused. Since the accused himself has stated that at the time

of the complainant giving him a loan of `30,000/-, he had

collected four post-dated cheques, therefore, the fact that the

accused was the drawer stands as admitted. Similarly the

dishonour of the cheque is also not in dispute. The evidence of

PW.1, both oral and documentary including the said cheque

return memos at Ex.P2 and Ex.P8, which have remained not

specifically disputed, go to show that the cheque when presented

for realisation was returned by the banker with the reason of

'insufficiency of funds'.

After the return of the cheque at Ex.P1, according to the

complainant, he got issued a legal notice to the accused as per Crl.RP.No.402/2013

Ex.P3. According to the complainant, the said notice was sent to

two known addresses of the accused under registered post

acknowledgement due as well as under certificate of posting.

The postal receipts at Ex.P4 and Ex.P5, postal acknowledgment

card at Ex.P7 and certificate of posting at Ex.P6 are the

documentary evidence produced by the complainant in that

regard.

The accused however contends that the said notice alleged

to have been sent to him by the complainant has not been

delivered to him. His defence in that regard which has come in

the cross examination of PW1 for the alleged non service of

notice is that the signature in the postal acknowledgment at

Ex.P7 varies from the one on the cheque at Ex.P1, as such, the

signature is not that of the accused. Hence, there is no valid

service of notice upon him.

Contending that the postman was not examined by the

accused to prove the alleged non receipt of the notice, the

learned counsel for the respondent vehemently submitted that

the contention of the accused that notice was not served upon

him is not acceptable.

Crl.RP.No.402/2013

A perusal of the notice at Ex.P3, postal receipts, certificate

of posting and acknowledgements at Ex.P4 to Ex.P7, in the light

of evidence of PW.1 and DW.1, would go to show that it is not

the case of the accused that the notice was sent to a wrong

address, however, his contention was that the said notice was

not received by him. When the notice admittedly said to have

been sent to correct address duly paying the proper postage on

it and when the postal acknowledgement is also received back

by the complainant, merely because the signature therein said to

be not tallying with Ex.P1, by that itself, it cannot be held that

there is no service of notice upon the addressee. The postal

acknowledgement which bears signature of the recipient with the

postal seal on it shows that the registered postal article was

delivered to the addressee.

Even otherwise also, the certificate of posting at Ex.P6

goes to show that, to both the available addresses of the

accused, the complainant had sent notice under certificate of

posting also. It is the case of the complainant that those notices

under certificate of posting also have been served upon the Crl.RP.No.402/2013

accused. Nowhere the accused has denied in the cross-

examination of PW.1 about the alleged non-receipt of the notices

sent to him under certificate of posting. Thus, the contention of

the petitioner/accused that notice was not served upon him is

not acceptable.

Admittedly, even after the complainant issued a legal

notice within the statutory period, the accused has not paid the

cheque amount to the complainant. Therefore, the 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.

18. In order to rebut the presumption, the contention

taken up by the accused was in the form of a defence, both in

the cross-examination of PW.1 as well as in his evidence as

DW.1, wherein he contended that the cheque in question along

with three more cheques were given to the complainnt when he

(accused) availed a loan of a sum of `20,000/- (at some other

place in the same evidence, DW.1 has stated it as `30,000/-).

However, even after repayment of the entire `20,000/-, those Crl.RP.No.402/2013

cheques were not returned to him on the contrary, the

complainant has misused one of the said cheques. In that

regard, the accused as DW.1 got produced a photocopy of his

alleged complaint to J.P.Nagar Police Station, Bengaluru, along

with police acknowledgement in Form 76A. A reading of the said

document at Ex.D1 would go to show that the accused has taken

a contention of alleged non-returning of four cheques by the

complainant. However, the details about the cheque and on

which date those cheques were alleged to have been given to

the complainant by him have not been mentioned in the

complaint. On the other hand, the accused as DW.1 himself in

his evidence has stated that, after lodging the complaint, police

summoned the complainant to the Police Station whereat the

complainant undertook that he would not go to the house of the

accused and threaten him, as such, the complaint was closed.

Therefore, based upon the alleged undertaking by the

complainant if the complaint has been closed, it cannot be

inferred that the complainant has admitted or accepted that he

was in possession of the alleged four cheques said to have been

given by the accused at the time of he availing the loan of Crl.RP.No.402/2013

`20,000/- from him. Therefore, Ex.D1 and Ex.D2 also would not

come to the benefit of the accused in rebutting the presumption

formed in favour of the complainant.

19. The accused also has taken a defence of he not

being at the place of the alleged loan transaction as on the date

of the loan transaction.

According to the complainant, the alleged loan transaction

was dated 10.02.2009. By producing the carbon copy of the

alleged Trip Sheet at Ex.D3, the accused contended that on the

said date, he was not in the station. A reading of the Trip Sheet,

which does not mention the correct, complete and clear name of

the accused, would not give rise to the presumption that accused

was not in the place on the said date. Further, assuming for a

moment that, the said Trip Sheet pertains to the avocation of

the accused, still merely by looking at the Trip Sheet, it cannot

be inferred that, on that particular day, the accused was away

from the alleged place of loan transaction. Therefore, the

alleged defence of alibi that has been taken by the accused also

could not be proved by him.

Crl.RP.No.402/2013

20. Another defence which the accused has taken in the

matter is about the alleged financial in capacity of the

complainant to lend the alleged loan amount of `1,00,000/- to

him. In that regard, few suggestions were made to PW.1 in his

cross-examination and some answers were elicited in the cross-

examination of PW.1. It was specifically suggested to PW.1 in

the cross-examination that he did not possess financial capacity

to lend such an amount of money as loan to the accused,

however, the complainant (PW.1) denied the said suggestion as

true. The witness was also asked specifically as to the source of

his financial capacity to lend such a huge amount as loan. In

reply, the witness stated that the said amount of `1,00,000/-

was in his house and he had brought the said amount from his

village and kept it in his home. However, the very same witness

in the very next sentence has stated that, at the relevant point

of time of alleged loan, he was working as a School Teacher.

A suggestion was also made that being a Government Servant,

he is governed by KCSRs., and cannot lend such a huge amount

as hand loan to third parties. To the said question put to him in

his cross-examination, PW.1 stated that he is not aware of Crl.RP.No.402/2013

KCSRs. It is this reaction in the form of reply to the suggestion

made by PW.1 that makes the defence of the accused a more

probable one. It is because, admittedly when the complainant

was a School Teacher, what makes him to bring cash of

`1,00,000/- from his alleged native place and keep it in home is

nowhere explained by him. It is also not expected that being a

School Teacher, for no reason, why he should bring such a huge

amount and keep it in home.

Secondly, he is a School Teacher, thus a Public Servant, he

is expected to know about the law by which he and his services

are governed, as such, he cannot plead ignorance of KCSRs.,

which governs his service condition. Being a Government

Servant, when he is not expected to lend such a huge amount of

money as hand-loan without the leave of his superiors or the

employing authorities, the very statement made by the

complainant that he had brought the said amount from his

native place and kept it at home and lent that amount in hard

cash to the accused creates a serious doubt in the case of the

complainant that he had lent a loan of `1,00,000/- to the

accused. Furthermore being a School Teacher if he is lending Crl.RP.No.402/2013

such a huge amount to another person, generally it is expected

of he maintaining some documentation in that regard. Thus the

non maintaining of any document with respect to the alleged

loan transaction further adds to the contention of the

complainant that he had lent `1,00,000/- to the accused.

21. On the other hand, the contention of the accused

that the alleged loan amount was either of `20,000/- or

`30,000/-, in which he had already repaid `20,000/-, but the

cheques that were given as security were being misused by the

complainant gains support by his alleged complaint to the police

as per Ex.D1, before the complainant proceeded to institute a

criminal case against him. No doubt the accused could have

taken some steps in recovering the alleged four cheques from

the complainant at the earliest point of time or could have

instructed his banker to stop payment, but merely not doing that

would not take away the serious doubt created in the case of the

complainant about his financial capacity to lend such a huge

amount of money. Thus when the accused could able to

successfully invade the case of the complainant about his Crl.RP.No.402/2013

financial capacity to lend such a huge amount of money to him,

that too, the complainant himself being a Government servant

who has not obtained any prior permission for such kind of

giving loan, it has to be held without any doubt that presumption

formed in favour of the complainant under Section 139 of N.I.

Act was successfully rebutted by the accused.

When presumption formed in favour of the complainant

has stood rebutted, the burden of proving the existence of

legally enforceable debt was upon the complainant which he has

not discharged in the trial Court. These aspects both the trial

Court as well as Sessions Judges' Court have not noticed.

Merely looking at the cheque, bank return memo, legal notice

and the postal acknowledgment, they have straightaway and in a

hasty manner, jumped to a conclusion holding that the

complainant has proved the alleged guilt against the accued.

Since the said reasoning of both the trial Court and Sessions

Judges' Court now proved to be perverse, the impugned

judgments warrants interference at the hand of this Court and

the accused deserves to be acquitted of the alleged offence.

Accordingly, I proceed to pass the following:-

Crl.RP.No.402/2013

ORDER

[i] The Criminal Revision Petition is allowed;

[ii] The impugned judgment of conviction and order

on sentence dated 21-01-2012, passed by the XIII

Additional Chief Metropolitan Magistrate, Bengaluru,

in C.C.No.25566/2009, holding the accused guilty of

the offence punishable under Section 138 of the

Negotiable Instruments Act, 1881 and sentencing

him to pay a fine of `1,05,000/-, and in default of

payment of fine, to undergo simple imprisonment for

a period of one year, is set aside;

Consequently, the judgment passed by the

Additional Sessions Judge, FTC-XIV, Bengaluru,

dated 27-08-2012, in Criminal Appeal No.101/2012,

confirming the judgment of the Trial Court is also

set aside.

[iii] The accused - Sri. Srinivas, S/o. Manjappa Nayak, Crl.RP.No.402/2013

R/a.No.71/4, 9th Cros, Near Sri Krishna Condiments,

Gangadharappa Garden, Shivananda Nagara,

Jaraganahalli, J.P.Nagar 6th Phase, Bengaluru-78, is

acquitted of the offence punishable under Section

138 of the Negotiable Instruments Act, 1881.

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 immediately.

Sd/-

JUDGE

Bss