Bharathi Dinesh Poojary vs Anil A V
2022 Latest Caselaw 9351 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF JUNE, 2022

                              BEFORE

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

 CRIMINAL REVISION PETITION No.572 OF 2018

BETWEEN:

Bharathi Dinesh Poojary,
W/o. Dinesh Poojary,
Aged about 38 years
R/at: Swarnagiri Layout,
Bondel, Mangaluru,
D.K. District - 575332.
                                                   ..Petitioner
(By Sri. B. Lethif, Advocate)

AND:

Anil A.V.,
S/o. Suryaganakaran,
Aged about 45 years,
R/at: Jananu House,
Agrahara, Chanthar village,
Brahmavara, Udupi Taluk,
Udupi District - 575 475.

                                                  .. Respondent
(By Sri. Deepak for Sri. A. Keshava Bhat, Advocate)

                                  ****
      This Criminal Revision Petition is filed under Section 397
read with Section 401 of the Code of Criminal Procedure, 1973,
praying to set aside the judgment/order of dismissal of
Crl.Appeal No.15/2017 dated 11-01-2018 passed by the 1st
Additional District and Sessions Judge, D.K. Mangaluru and order
of conviction and sentence dated 12-01-2017 passed in
                                               Crl.R.P.No.572/2018
                                2


C.C.No.1743/2014 by the JMFC (V Court), Mangaluru D.K. by
allowing the above Revision Petition and acquit the petitioner and
grant such other relief/s deem fit to grant to the petitioner,
under the facts and circumstances of the case, in the interest of
justice.

      This Criminal Revision Petition coming on for Admission,
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 Judicial Magistrate First Class (V

Court), Mangaluru, D.K. (hereinafter for brevity referred to

as "the Trial Court"), in Criminal Case No.1743/2014, 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

12-01-2017.

Aggrieved by the same, the accused preferred a

Criminal Appeal, in the Court of the learned I Additional

Principal District and Sessions Judge, D.K. Mangalore,

(hereinafter for brevity referred to as "the Sessions Judge's

Court") in Criminal Appeal No.15/2017.

Crl.R.P.No.572/2018

The appeal was contested by the respondent who was

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

Court in its judgment and order dated 11-01-2018,

dismissed the appeal, confirming the judgment of conviction

and order on sentence passed by the Trial Court dated

12-01-2017 in C.C.No.1743/2014.

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 was that, at the request of the accused who was

a known person to him, the complainant in the month of

July 2014, had given a total sum of `6,00,000/- to her as

hand loan. Towards the repayment of the loan amount, the

accused had issued him a cheque bearing No.007907 dated

18-09-2014 drawn on the Corporation Bank, Konchadi

Branch, Mangalore, for a sum of `6,00,000/- in favour of

the complainant. When the said cheque was presented for

its realisation, the same came to be returned with the

Banker's endorsement 'funds insufficient'. Thereafter the Crl.R.P.No.572/2018

complainant got issued a legal notice dated 15-10-2014 to

the accused demanding from her the payment of the

cheque amount. The said notice came to be returned to the

sender with the postal shara 'intimation served - not

claimed- returned to the sender'. Since the cheque amount

remained unpaid, the complainant was constrained to

institute a criminal case against the accused in

C.C.No.1743/2014, in the Trial Court, for the offence

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

3. The accused appeared in the Trial Court and

contested the matter through her counsel. She pleaded not

guilty and claimed to be tried, as such, the Trial Court

proceeded to record the evidence. To prove his case, the

complainant got himself examined as PW-1 and got marked

documents from Exs.P-1 to P-9 and closed his side. The

accused got herself examined as DW-1 and got marked a

single document as Ex.D-1, in her support.

4. The Trial Court after recording the evidence led

before it and hearing both side, by its impugned judgment Crl.R.P.No.572/2018

of conviction and order on sentence dated 12-01-2017

convicted the accused for the offence punishable under

Section 138 of the N.I. Act and ordered her to pay a fine of

`6,05,000/- and in case of default of payment of fine

amount, she was ordered to undergo Simple Imprisonment

for a period of three months.

As observed above, Challenging the impugned

judgments of conviction and order on sentence passed by

the Trial Court as well the Sessions Judges Court, the

accused has preferred this revision petition.

5. Learned counsel for the revision petitioner

(accused) and learned counsel for the respondent/

complainant are appearing physically in the Court.

6. The Trial Court and Sessions Judge's Court's

records were called for and the same are placed before this

Court.

Crl.R.P.No.572/2018

7. Though this matter was listed for Admission, with

the consent from the learned counsels from both side, the

same is taken up for final disposal.

8. Heard the learned counsels from both side.

Perused the materials placed before this Court including the

impugned judgments and 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.

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 illegal, perverse, and erroneous, warranting interference at the hands of this Court?

11. Learned counsel for the petitioner, in his

argument submitted that it is not in dispute that the cheque

at Ex.P-1 was drawn by the accused under her signature Crl.R.P.No.572/2018

and the same was returned unpaid for the reason of

insufficiency of funds, however, he contends that the

alleged legal notice was not actually served upon the

accused/petitioner herein. It is also his contention that

there was no loan transaction between the complainant and

the accused, however, the cheque in question given by the

accused to one Sri. Dayananda in connection with a Gas

Agency was misused in the form of he getting the said

cheque presented through complainant for its realisation.

With this, the learned counsel submitted that the said

defence taken by the accused was not properly considered

by the Trial Court and also the Sessions Judge's Court.

12. Learned counsel for the complainant/respondent

herein, in his argument submitted that, the complainant has

explained when and in how many instalments the loan was

given to the accused, as such, the accused cannot contend

the absence of any loan transaction between them.

Admittedly, the cheque was drawn by the accused in favour

of the complainant which has stood returned unpaid, as Crl.R.P.No.572/2018

such, the accused, in order to avoid her liability towards

the complainant has taken false defences in her support

and that she has also failed to establish any of those

defences taken by her.

13. The complainant as PW-1 in his evidence has

reiterated the contentions taken up by him in his complaint.

In his further examination-in-chief, he has given the details

as to when and in how many instalments the alleged loan

amount was given to the accused. He has stated that on

the date 17-07-2014, a sum of `1,20,000/- was transferred

to the account of the accused under NEFT. In that

connection, he has got produced his Pass Book at Ex.P-7

and got marked the relevant entry at Ex.P-7(a). He has

further stated that on the date 21-07-2014, he withdrew a

sum of `2,00,000/- from his Bank and given the same in

cash to the accused. He also stated that, on the date

31-07-2014, he withdrew another sum of `1,80,000/- from

his Bank account, out of which, he has paid `1,30,000/- in

cash to the accused/petitioner herein. The witness has also Crl.R.P.No.572/2018

stated that, on the date 17-07-2014, he has also

transferred another sum of `1,50,000/- to the account of

the accused from his Bank account of Federal Bank. In that

regard, he has got produced and marked the said Pass Book

at Ex.P-8 and the relevant entry at Ex.P-8(a). These details

of the transactions between the complainant and the

accused/petitioner herein have not been specifically denied

in her cross-examination, on the other hand, it was only

attempted to elicit from her that these details of the

instalments of loan said to have been given to the accused

have not been clearly mentioned in the complaint.

However, the said contention of the alleged non-

mentioning of the details of the loan amount did not shake

the evidence of PW-1 given in his examination-in-chief,

since a legal presumption about the existence of a legally

enforceable debt forms in favour of the complainant.

14. The complainant has contended as PW-1 that, a

legal notice, demanding the payment of the cheque amount

was also issued to the accused under the Registered Post Crl.R.P.No.572/2018

Acknowledgment Due (RPAD), demanding from her the

payment of the cheque amount, which is at Ex.P-1.

However, the said notice was returned to the sender with

postal endorsement "party intimation served - not claimed

- returned to sender". In that regard, the complainant has

produced the original returned cheque at Ex.P-1; Banker's

endorsement, showing that the cheque has been returned

unpaid for the reason of insufficiency of funds at Ex.P-2;

copy of the legal notice at Ex.P-3; postal receipt at Ex.P-4,

returned postal cover at Ex.P-5 and original notice that was

sent under Ex.P-5, at Ex.P-6. These exhibits have not

been specifically denied or disputed from the accused's

side.

15. A perusal of the returned postal cover would go to

show that, the notice was sent to the accused, however, it

was returned to the sender since the accused did not claim

the said notice. Though an attempt was made in the cross-

examination of PW-1 to show that the notice was not sent

to the correct address of the accused/petitioner herein, Crl.R.P.No.572/2018

however, those suggestions were not admitted as true by

the complainant. On the other hand, admittedly, the

petitioner herein (accused) was a former Corporator of the

Corporation of Mangalore, as such, she would be apart from

being a social worker, a known figure in the city. Further

more, the postal shara does not mention that the address

was incorrect. However, it shows that when the postal

article was attempted to be served upon the accused, she

had remained absent. However, the party intimation was

served. Despite serving such party intimation, the

addressee did not claim the notice, as such, with the shara

of party not claiming the notice, it was sent back to the

sender. Therefore, the argument of the learned counsel for

the accused/petitioner that there was no service of notice

upon the accused, is also not acceptable.

16. In the above circumstance, the only option left

out for the accused was to rebut the presumption which had

already formed in favour of the complainant of a legally

enforceable debt, under Section 139 of the N.I. Act.

Crl.R.P.No.572/2018

In the said process, the accused has taken two

contentions. The first contention was that, the complainant

was a stranger to her. Regarding the said contention,

except making a suggestion to PW-1 in his cross-

examination and also the accused who got herself

examined as DW-1, making such a statement in her

examination-in-chief, no corroboration was placed by the

accused/petitioner. On the contrary, from the accused's

side, it was suggested to PW-1 that one Sri.Dayananda was

the neighbour of the complainant. Further, it was elicited in

the cross-examination of PW-1 that the said Dayananda

and the complainant were known to each other and they

were friends. According to the complainant, the accused

was introduced to him through the said Dayananda.

Therefore, the first contention of the learned counsel for

the complainant that the accused was known to him stands

established, as such, the defence of the accused that the

complainant was a stranger to her, is not acceptable.

Crl.R.P.No.572/2018

The second defence taken by the accused was that,

the cheque in question was delivered by her to said

Sri. Dayananda towards a Gas Agency, however, the said

Dayananda has got the said cheque presented through the

complainant.

Even with respect to this defence also, except making

suggestions to PW-1 in his cross-examination and making

such statement in her examination-in-chief as DW-1, the

accused has not placed any corroborative materials before

the Court. There is nothing on record to show that any such

Gas Agency transaction had taken place between the said

Sri. Dayanada and the accused and that the cheque in

question at Ex.P-1 was delivered by the accused to the said

Sri. Dayananda. In that regard, from the complainant's

side, a question was put to DW-1 in her cross-examination

as to whether she was willing to examine the said

Dayananda. However, for that also, the accused, as DW-1,

replied stating that the complainant can examine him, if

required. Thus, the accused who had an opportunity to Crl.R.P.No.572/2018

examine the said Sri. Dayananda on her behalf and to take

his support for her alleged defence, also did not make any

such attempt, but rather shown her dis-inclination to

examine the said Sri. Dayananda.

17. Lastly, even according to the accused, she has

not given any Police complaint towards the alleged misuse

of the cheque in question by the complainant, which,

according to the accused, was given to one Sri. Dayananda.

In her cross-examination, DW-1 has specifically stated

about she delivering the cheque to Sri. Dayananda and that

the complainant misusing the very same cheque, has not

been complained to the Police or no action in that regard

was taken by her. Thus, it is established that despite the

accused having sufficient opportunities to substantiate her

defence in the matter, but confined only in making few

suggestions to PW-1 in his cross-examination and making

the statements as DW-1, has not succeeded in rebutting

the presumption that was formed in favour of the

complainant.

Crl.R.P.No.572/2018

18. It is appreciating these evidence placed before it,

the Trial Court has rightly convicted the accused for the

alleged guilt and sentenced her proportionate to the proven

guilt, which was further confirmed by the learned Sessions

Judge's Court. Hence, I do not find any reasons to interfere

in the impugned judgments of conviction and order on

sentence passed by both the Trial Court as well the

Sessions Judge's 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 the Sessions Judge's Court along with

their respective records, at the earliest.

Sd/-

JUDGE

BMV*