Sri. H D Ganganna vs Sri. Ramesh M @ Ramesh Mohan
2022 Latest Caselaw 9880 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 29TH DAY OF JUNE 2022

                       BEFORE

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

  CRIMINAL REVISION PETITION NO.577 OF 2018
                     C/W
  CRIMINAL REVISION PETITION NO.578 OF 2018,
  CRIMINAL REVISION PETITION NO.579 OF 2018

IN CRL.R.P.No.577/2018

BETWEEN:

SRI. H.D. GANGANNA,
S/O LATE DEVAIAH,
AGED ABOUT 62 YEARS,
R/AT NO.93, 4TH CROSS,
BASAVESHWARA BADAVANE,
BEML 3RD STAGE, RAJARAJESHWARI NAGAR,
BANGALORE-560 098.
                                           ... PETITIONER
(BY SMT.ARCHANA K.M, AMICUS CURIAE
FOR PETITIONER)

AND:

SRI. RAMESH M @ RAMESH MOHAN,
S/O MOHAN G, MAJOR,
R/AT NO.403, ABONAI PRINITY APARTMENTS,
2ND 'A' CROSS, 10TH 'A' STAGE,
PRAKRUTHI TOWNSHIP, IST BLOCK,
HORAMAVU-AGRA MAIN ROAD,
BANGALORE-560 043.
                                          ... RESPONDENT
(BY SRI.JAVEED, AMICUS CURIAE FOR
RESPONDENT)
                                         Crl.R.P.No.577/2018 C/W
                       CRL.R.P.No.578/2018, CRL.R.P.No.579/2018
                           2


     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENT DATED 21.02.2018 PASSED BY IN THE COURT OF
THE LIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT
BANGALORE PASSED IN CRL.APPEAL NO.407/2016 AND SET
ASIDE THE JUDGMENT DATED 02.03.2016 PASSED BY IN THE
COURT    OF   XX   ADDITIONAL     CHIEF   METROPOLITAN
MAGISTRATE AT BANGALORE IN C.C.NO.5651/2013.

IN CRL.R.P.No.578/2018

BETWEEN:

SRI. H.D. GANGANNA,
S/O LATE DEVAIAH,
AGED ABOUT 62 YEARS,
R/AT NO.93, 4TH CROSS,
BASAVESHWARA BADAVANE,
BEML 3RD STAGE, RAJARAJESHWARI NAGAR,
BANGALORE-560 098.
                                              ... PETITIONER
(BY SMT.ARCHANA K.M, AMICUS CURIAE
FOR PETITIONER)

AND:

SMT. KOMALA D.G,
W/O R. RAMESH,
AGED ABOUT 38 YEARS,
R/AT NO.416, 3RD 'B' MAIN ROAD,
9TH CROSS, 2ND PHASE,
WEST OF CHORD ROAD, RAJAJINAGAR,
BANGALORE-560010.
                                            ... RESPONDENT
(BY SRI.JAVEED, AMICUS CURIAE FOR
RESPONDENT)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENT DATED 21.02.2018 PASSED BY IN THE COURT OF
THE LIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT
                                         Crl.R.P.No.577/2018 C/W
                       CRL.R.P.No.578/2018, CRL.R.P.No.579/2018
                             3


BANGALORE PASSED IN CRL.APPEAL NO.408/2016 AND SET
ASIDE THE JUDGMENT DATED 02.03.2016 PASSED BY IN THE
COURT   OF   XX   ADDITIONAL    CHIEF   METROPOLITAN
MAGISTRATE AT BANGALORE IN C.C.NO.5650/2013.

IN CRL.R.P.No.579/2018

BETWEEN:

SRI. H.D. GANGANNA,
S/O LATE DEVAIAH,
AGED ABOUT 62 YEARS,
R/AT NO.93, 4TH CROSS,
BASAVESHWARA BADAVANE,
BEML 3RD STAGE, RAJARAJESHWARI NAGAR,
BANGALORE-560 098.
                                              ... PETITIONER
(BY SMT.ARCHANA K.M, AMICUS CURIAE
FOR PETITIONER)

AND:

SRI. THANGARAJ R,
S/O P. RAMDOSS,
MAJOR,
R/AT NO.404, 'B' BLOCK,
KEERTHI RIVIERA APARTMENT,
'G' CROSS, 6TH MAIN ROAD,
KAGGADASAPURA,
C.V.RAMAN NAGAR,
BANGALORE-560093
                                             ... RESPONDENT
(BY SRI.JAVEED, AMICUS CURIAE FOR
RESPONDENT)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENT DATED 21.02.2018 PASSED BY IN THE COURT OF
THE LIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT
BANGALORE PASSED IN CRL.APPEAL NO.409/2016 AND SET
ASIDE THE JUDGMENT DATED 02.03.2016 PASSED BY IN THE
                                          Crl.R.P.No.577/2018 C/W
                        CRL.R.P.No.578/2018, CRL.R.P.No.579/2018
                            4


COURT   OF   XX   ADDITIONAL    CHIEF   METROPOLITAN
MAGISTRATE AT BANGALORE IN C.C.NO.5652/2013.

     THESE CRIMINAL REVISION PETITIONS ARE COMING ON
FOR ADMISSION THROUGH PHYSICAL HEARING/VIDEO
CONFERENCING HEARING, THIS DAY THE COURT MADE THE
FOLLOWING:

                         ORDER

The petitioner in all these three criminal cases was

tried by the learned XX Additional Chief Metropolitan

Magistrate, Bengaluru, (henceforth for brevity referred to

as the `Trial Court') in C.C.No.5651/2013,

C.C.No.5650/2013 and C.C.No.5652/2013 respectively for

the offence punishable under Section 138 of the Negotiable

Instruments Act (henceforth for brevity referred to as the

'N.I.Act'), who under the judgment of the said Trial Court

dated 2.3.2016, convicted for the offence punishable under

Section 138 of the N.I.Act and was sentenced accordingly.

Aggrieved by the same, the present petitioner (accused)

preferred Criminal Appeals in Crl.A.No.407/2016,

Crl.A.No.408/2016 and Crl.A.No.409/2016 in the court of

the learned LIX Additional City Civil and Sessions Judge,

Bangalore City (CCH-60) (henceforth for brevity referred to Crl.R.P.No.577/2018 C/W CRL.R.P.No.578/2018, CRL.R.P.No.579/2018

as the 'Sessions Judge's Court). The said Sessions Judge's

Court after hearing both sides, by its judgments dated

21.2.2018, dismissed the appeal. Aggrieved by the same,

the accused in the Trial Court has preferred these three

petitions.

2. The respondents in these three petitions were

the complainants in the Trial Court.

3. In view of the fact that the learned counsels for

the revision petitioner and respondents have failed to

appear before this Court on several dates of hearing, this

Court by its reasoned order in Crl.R.P.No.578/2018 and

Crl.R.P.No.578/2018, both dated 25.05.2022, appointed

learned counsel - Sri. S. Javeed, as Amicus Curiae for the

respondents and by order dated 07.06.2022, appointed

learned counsel - Smt.Archana K.M., as Amicus Curiae for

the petitioner/accused and also this Court by its reasoned

order in Crl.R.P.No.579/2018 dated 16.6.2022, appointed

learned counsel - Sri. S. Javeed, as Amicus Curiae for the Crl.R.P.No.577/2018 C/W CRL.R.P.No.578/2018, CRL.R.P.No.579/2018

respondent and appointed learned counsel - Smt.Archana

K.M., as Amicus Curiae for the petitioner/accused to

represent their respective cases.

4. 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.

5. Though these matters were listed for admission,

however, at the request of learned Amicus Curiae from

both side, all these three matters since have been filed by

the same petitioner and the nature of the Revision

Petitions are also the same, are taken up together for their

disposal through this common order.

6. The learned Amicus Curiae for the petitioner

and learned Amicus Curiae for the respondents are

physically present in the Court.

7. Heard the arguments from both side. Perused

the materials placed before this Court, including the Trial

Court and Sessions Judge's Court's records.

Crl.R.P.No.577/2018 C/W CRL.R.P.No.578/2018, CRL.R.P.No.579/2018

8. For the sake of convenience, the parties would

be henceforth referred to as per their rankings before the

trial Court.

9. After hearing the learned Amicus Curiae from

both side, the only point that arise for my consideration in

these revision petitions are:

Whether the judgments under revision are perverse, illegal and erroneous warranting interference at the hands of this Court?

10. Learned Amicus Curiae for the petitioner in her

argument submitted that the cheques in question were

given to one Sri.Manjunatha.D.G. as a security for the loan

taken by the accused from the said Sri.Manjunatha.D.G.

However, even after repayment of the entire loan amount,

the cheques were not returned to the accused but the said

Sri.Manjunatha.D.G. has misused the same by getting

those cheques presented by three different complainants

(respondents herein). She further submits that even Crl.R.P.No.577/2018 C/W CRL.R.P.No.578/2018, CRL.R.P.No.579/2018

though the complainants contend that they were assured

of getting allotted a site but no details regarding the

allotment letter or the particulars of the site have been

furnished. Finally, stating that no notice was delivered to

the accused, as such, there is non-compliance of statutory

obligation, the learned Amicus Curiae prays for allowing

these three petitions.

11. Learned Amicus Curiae for the respondents in

his brief argument submitted that except the self-serving

statement of the accused as DW1 that the cheques in

question were issued as a security through one

Sri.Manjunatha.D.G, there is nothing on record to show

that the cheques in question were issued by him and that

they were misused by the complainants in these cases.

With this, he submits that since the defence taken by the

accused has not been established, presumption formed in

favour of the complainants stands crystallized. He also

submits that admittedly, there are several criminal cases

for the offences punishable under Section 138 of N.I.Act, Crl.R.P.No.577/2018 C/W CRL.R.P.No.578/2018, CRL.R.P.No.579/2018

pending against the accused, as such, he is a habitual

person of committing and repeating these kinds of

offences. With this, he submits that the impugned

judgments does not warrant any interference at the hands

of this court.

12. In all the three cases, summary of the case of

the complainants in the Trial Court was that the accused

was introduced to them through one Sri.D.G.Manjunatha.

The accused representing to the complainants that he is

working in M/s Bharat Earth Movers Limited, Bengaluru

and that he would secure the complainants, the sites

alleged to have been formed by BEML Employees

Co-operative Society Limited at Channasandra main road,

Uttarahalli hobli, Rajarajeshwari Nagar, Bangalore, had

collected large sum of money. However, later, it was

turned out that the accused had nothing to do with the

said BEML Employees Co-operative Society Limited and by

falsely promising the complainants of securing the sites to

them, he had collected money. Thus, from the Crl.R.P.No.577/2018 C/W CRL.R.P.No.578/2018, CRL.R.P.No.579/2018

complainants in C.C.No.5651/2013, he collected a sum of

`3,00,000/- (Rupees Three Lakhs Only), in

C.C.No.5650/2013, he collected as an initial payment, a

sum of `8,00,000/- (Rupees Eight Lakhs Only) and in

C.C.No.5652/2013, as an initial payment, he collected a

sum of `5,50,000/- (Rupees Five Lakhs Fifty Thousand

Only). At the constant persistence made by the

complainants, the accused issued all the three

complainants cheque for a sum of `3,00,000/- in favour of

complainant in C.C.No.5651/2013, a cheque for a sum of

`3,50,000/- to the complainant in C.C.No.5650/2013 and a

cheque for a sum of `5,50,000/- to the complainant in

C.C.No.5652/2013. All those cheques were drawn on

Canara Bank, Sampangiramanagar branch, Bengaluru, in

favour of the respective complainants. When those

cheques were presented for their realization by the

respective complainants, all the cheques were returned

with the bankers endorsement as "Funds Insufficient" in

the account of the drawer. It is thereafter the Crl.R.P.No.577/2018 C/W CRL.R.P.No.578/2018, CRL.R.P.No.579/2018

complainants claim to have issued legal notice to the

accused without any delay, demanding the payment of the

cheque amount. Despite the same, since the accused failed

to pay the cheque amount, the complainants were

constrained to institute the criminal cases against the

accused in the Trial Court for the offence punishable under

Section 138 of the N.I.Act.

13. In all three cases, complainants got themselves

examined as PW1 wherein, the complainants have

reiterated the contentions taken up in their respective

complaints. In support of their contention, the

complainants in all the three cases got produced and

marked the alleged dishonored cheque at Ex.P1, signature

of the accused therein got produced and marked at

Ex.P1(a). The complainants also produced and got marked

as exhibits the documents including the bankers

endorsement, copy of the legal notice, postal receipts,

unserved postal covers, the notices and copies of First

Information Report and charge sheets.

Crl.R.P.No.577/2018 C/W CRL.R.P.No.578/2018, CRL.R.P.No.579/2018

14. In all the three criminal cases, the accused got

himself examined as DW1 who in his examination-in-chief

has stated that in the year 2010-2011, he had availed a

loan of `16,00,000/- (Rupees Sixteen Lakhs Only) from

one Sri.Manjunatha.D.G, it was at that time as a security,

the blank cheques, however, duly signed were given to

him. The said loan amount of `16,00,000/- was returned

to said Sri.Manjunatha.D.G. both in the form of cash and

cheques. However, the said Sri.Manjunatha.D.G. without

returning the blank cheques to him, has got them

produced through the present complainants. In support of

his contention, the accused as DW1 also got produced the

statement of the bank account and got marked as Ex.D1.

The witness was subjected to detailed cross-examination

wherein, he adhered his version contending that he had

not taken any money from the complainants. However, he

has admitted in his cross-examination that the

complainants were known persons to him.

Crl.R.P.No.577/2018 C/W CRL.R.P.No.578/2018, CRL.R.P.No.579/2018

15. From the above evidence of the parties to the

litigation, the undisputed fact remains that through one

Sri.Manjunatha.D.G, both the complainants and accused

were known to each other. The cheques in all the three

cases which are marked at Ex.P1 was drawn by the

accused and that when presented for realization by the

respective complainants, all three cheques have returned

with the bankers endorsement as "Funds Insufficient". The

bankers endorsement marked in all these three cases as

exhibits, supports the same. According to the

complainants, after dishonor of the cheques, they got

issued legal notice upon the accused and those notices

were sent under the Registered Post Acknowledgement

Due to the addresses of the accused. According to the

complainants, the notices are also sent to the Central

Prison, Parappana Agrahara, Bengaluru, showing the

accused as under trial prisoner with a specific UTP number.

Crl.R.P.No.577/2018 C/W CRL.R.P.No.578/2018, CRL.R.P.No.579/2018

According to the learned Amicus Curiae for the

petitioner, in all these three matters, the notices sent to

the accused were not delivered to the accused, as such,

there is no service of notice and hence, the statutory

obligation of issuance of notice has not been complied

with.

The said contention of learned Amicus Curiae for the

petitioner is not acceptable for the reasons that in all those

three cases, notices sent to the residential address of the

accused is shown to have been returned with the postal

authority shara that on few days of tendering notice to

him, the house of the accused was shown to be door

locked and thereafter, the notice was returned to the

sender with the postal authority shara as 'not claimed

returned to sender'. The returned postal cover with the

postal endorsement which are marked as exhibits in all

these three cases depicts it. Thus, the notices were sent to

the correct residential address of the accused, however,

the accused did not collect them, as such, the same was Crl.R.P.No.577/2018 C/W CRL.R.P.No.578/2018, CRL.R.P.No.579/2018

returned to the sender. With respect to the notices sent

under Registered Post Acknowledgement Due to the

accused, Central Prison, Parappana Agrahara, Bengaluru,

have been returned with the postal endorsement that

they were refused to be received by the accused, hence,

returned to sender. This clearly go to show that even

after tendering the notice, the addressee therein who is

the accused has refused to collect them, as such, they

were returned to the sender. Therefore, when notices were

tendered to the accused both at his residential address and

his then present address which was the Central Prison, the

accused did not collect the notices sent to him in the

residential address nor had received notice tendered to

him while he was said to be in Central Prison, as such,

cannot be held that there was no service of notice upon

the accused. On the other hand, there was tendering of

notice upon him but the accused himself failed to collect

them and also refused to receive it, as such, the argument Crl.R.P.No.577/2018 C/W CRL.R.P.No.578/2018, CRL.R.P.No.579/2018

of learned Amicus Curiae for the petitioner that there is no

service of notice upon the petitioner, is not acceptable.

Admittedly, even after the tendering of the notice and

the accused coming to know about the said notice when it

was tendered to him, has not paid the cheques amount

which cheques were dishonored for the alleged

insufficiency of funds. Hence, under Section 139 of the

N.I.Act, presumption about existence of legally enforceable

debt form in favour of the complainants. However, the said

presumption is rebuttable.

16. In order to rebut the presumption formed in

favour of the complainants, the accused has taken a

defence in the cross-examination of PW1 in all the three

cases and also reiterated the same defence in his evidence

as DW1 that the cheques were given to one

Sri.Manjunatha.D.G. as a security for a loan said to have

been taken by the accused in the year 2010-11. However,

the said Sri.Manjunatha.D.G. had alleged to have not Crl.R.P.No.577/2018 C/W CRL.R.P.No.578/2018, CRL.R.P.No.579/2018

returned those cheques even after repayment of the loan

amount who alleged to have been misused them by getting

the same presented through the complainants. In that

regard, though DW1 has produced copy of the statement

of his bank account and got it marked as Ex.D1. But the

said statement except showing some debit entries in the

account of the accused would not speak anything about

the alleged issuance of cheque to said Sri.Manjunatha.D.G.

as a security and misusing of all those cheques by

Sri.Manjunatha.D.G. by getting them presented through

the present complainants. As such, the evidence of DW1

which was denied in his cross-examination and also Ex.D1

would not take the case of the accused any further in

rebutting presumption that was formed in favour of the

complainants.

On the other hand, as analyzed above, the evidence of

the complainants in all the three cases which is fully

corroborated by the documentary evidence which are marked

as exhibits which included the returned original

cheque, bankers endorsement, copies of the legal notice, Crl.R.P.No.577/2018 C/W CRL.R.P.No.578/2018, CRL.R.P.No.579/2018

postal receipt, returned postal covers, would clearly go to

show that the complainants as payees under the cheque

have presented the cheque, but, however, the same

returned dishonored for insufficiency of funds in the

account of the accused. There is nothing to show that

those cheques were actually and originally delivered to

Sri.Manjunatha.D.G. by the accused and that the said

Sri.Manjunatha.D.G. had got those cheques presented

through the complainants. In fact, in that regard, had

really the accused intended to strengthen his defence to

make them able to rebut the presumption formed in favour

of complainants, he could have examined the said

Sri.Manjunatha.D.G. as his witness. However, even after

knowing fully well that his alleged defence is solely based

upon the stand that would be taken by Sri.Manjunatha.D.G,

the accused chosen not to examine the said

Sri.Manjunatha.D.G. for the reasons best known to him. As

such, when the accused had a better evidence at his

command or disposal, to place before the court in the form Crl.R.P.No.577/2018 C/W CRL.R.P.No.578/2018, CRL.R.P.No.579/2018

of securing the said Sri.Manjunatha.D.G. as a witness and

examining him, has not chosen to place the said evidence

before the court. As such, the sole self-serving statement

of the accused which too has been denied by all the

complainants, could not shaken the evidence of PW1 and

could not succeed in rebutting the presumption formed in

favour of the complainants. Thus, the oral and

documentary evidence led by the complainants as PW1 in

all the three cases have resulted in crystallizing the

presumption formed in their favour about the existence of

legally enforceable debt. Since admittedly the cheques

issued by the accused in all the three cases have been

returned for the reason of insufficiency of funds and the

complainants have taken all steps including the issuance of

legal notice well in time demanding the cheque amount but

still could not able to get the said amount, the guilt against

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

stands proved.

Crl.R.P.No.577/2018 C/W CRL.R.P.No.578/2018, CRL.R.P.No.579/2018

17. In addition to the above, it also cannot be

ignored of the fact that as admitted by DW1 in his cross-

examination, there are several criminal cases pending

against him including few cases wherein, he is the

accused for the offence punishable under Section 138 of

N.I.Act. As admitted by DW1 in his cross-examination, one

more criminal case being investigated by the City Crime

Branch, is also pending against him. Thus, the submission

of learned Amicus Curiae for the respondent that the

accused appears to be an habitual offender, involving in

many similar criminal cases also cannot be ignored. Still

irrespective of the same and independent of those alleged

other criminal cases, suffice it to hold that the

complainants in all these three cases could able to prove

beyond reasonable doubt the alleged guilt against the

accused. Both the Trial Court and Sessions Judge's Court

after analyzing the evidence placed before them in their

proper perspective have arrived at a conclusion of holding the

accused guilty of the alleged offence and have ordered sentence Crl.R.P.No.577/2018 C/W CRL.R.P.No.578/2018, CRL.R.P.No.579/2018

proportionate to the gravity of the proven guilt against the

accused. Hence, I do not find any reason to interfere in

the impugned judgments in all three matters.

18. Accordingly, I proceed to pass the following:

ORDER

The Criminal Revision Petition No.577/2018, Criminal

Revision Petition No.578/2018 and Criminal Revision

Petition No.579/2018 are dismissed as devoid of merits.

Accused/petitioner to surrender before the learned

XX Additional Chief Metropolitan Magistrate, Bengaluru,

within 45 days from today and serve the sentence.

The Court, while acknowledging the services rendered

by the learned Amicus Curiae for the revision petitioners -

Smt.Archana K.M, and learned Amicus Curiae for the

respondents - Sri. S. Javeed, recommends honorarium of a

sum of not less than a sum of `4,000/- payable to each of

them in each of the cases without delay, by the Registry.

Crl.R.P.No.577/2018 C/W CRL.R.P.No.578/2018, CRL.R.P.No.579/2018

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

CBC