J V Enterprises vs Sri M Govind Raj
2022 Latest Caselaw 4206 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 11TH DAY OF MARCH, 2022

                          BEFORE

            THE HON'BLE MR. JUSTICE H.P. SANDESH

         CRIMINAL REVISION PETITION NO.1451/2019

BETWEEN:

1.     J.V.ENTERPRISES,
       NO.540, 15TH MAIN,
       SARASWATHIPURAM,
       MYSURU - 670009.
       REPRESENTED BY ITS PROPRIETOR
       P.C.BALASUBRAMANYA.

2.     SRI P.C.BALASUBRAMANYA,
       AGED ABOUT 69 YEARS,
       S/O LATE CHAYAPATHI,
       NO.540, 15TH MAIN,
       SARASWATHIPURAM,
       MYSURU - 670009.                      ...PETITIONERS

               (BY SRI K.B.K. SWAMY, ADVOCATE)

AND:

SRI M.GOVIND RAJ,
AGED ABOUT 57 YEARS,
S/O LATE SRI M. SRINIVASAN,
R/AT NO.673, 45TH CROSS,
5TH BLOCK, JAYANAGAR,
BENGALURU - 560 082.                         ...RESPONDENT

            (BY SRI TEJAS C. SHETTY, ADVOCATE FOR
                 SRI P.CHINNAPPA, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF CR.P.C PRAYING TO SET ASIDE
THE IMPUGNED JUDGMENT AND ORDER DATED 11.11.2019
PASSED BY THE LIX ADDITIONAL CITY CIVIL AND SESSIONS
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JUDGE AT BENGALURU CITY (CCH-60) IN CRL.A.NO.226/2019
CONFIRMING THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE IN C.C.NO.7965/2007, DATED 27.12.2018 PASSED BY
THE XXI ADDITIONAL SCJ AND XIX ACMM, MEMBER AND THE
MOTOR ACCIDENT CLAIMS TRIBUNAL AT BENGALURU BY
ALLOWING THIS CRL.RP.

     THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

This revision petition is filed challenging the judgment of

conviction and sentence dated 27.12.2018 passed in

C.C.No.7965/2007 by the Trial Court and also the confirmation

order dated 11.11.2019 passed in Crl.A.No.226/2019 by the

Appellate Court for the offence punishable under Section 138 of

the Negotiable Instruments Act.

2. The factual matrix of the case is that the

complainant in the complaint has contended that these revision

petitioners in discharge of the debt, issued cheque bearing

No.515300 dated 05.01.2007 drawn on Vijaya Bank, N.R.Road,

Bengaluru, for a sum of Rs.38,50,000/-. When the said cheque

was presented for encashment on 05.01.2007, the same was

dishonoured on the ground of "insufficient funds." On receipt of

the intimation, legal notice was given to the revision petitioners

and he did not comply with the demand and hence complaint

was filed by the complainant and the Trial Court after taking the

cognizance, examined the complainant as P.W.1 and the other

witness as P.W.2 and got marked the documents at Exs.P.1 to

83. On the other hand, the revision petitioner is also examined

as D.W.1 and examined other four witnesses as D.W.2 to D.W.5

and got marked the documents at Exs.D.1 to 12. The

Commissioner's report is marked as Ex.C.1. The Trial Court

after considering both oral and documentary evidence placed on

record, including Ex.C.1, sentenced the accused to pay an

amount of Rs.38,55,000/-. In default of payment of fine, the

accused shall undergo simple imprisonment for a period of six

months.

3. Being aggrieved by the said conviction and sentence,

the petitioners preferred an appeal and the Appellate Court on

re-appreciation of the material on record, dismissed the appeal

and confirmed the judgment of conviction and sentence. Hence,

the present revision petition is filed before this Court.

4. The learned counsel for the petitioners would mainly

contend that both the judgment of conviction and sentence and

also confirmation suffers from legality and correctness and the

Courts below failed to appreciate the fact that the legal notice

Ex.P.5 does not contain the details of financial transactions said

to have been taken place between the complainant and the

accused. The legal notice is very cryptic and vague in nature.

The legal notices sent to the petitioners were not served and the

notices were retuned unserved with an endorsement that

addressee left and no such address. Inspite of Ex.D.11 is

produced, both the Courts have committed an error in not

considering the same. It is also contended that on few

occasions, the accused had filed the complaint against the

complainant and his henchmen, as a result of which the

complainant was summoned to the police station for

investigation and in the said investigation, the complainant has

volunteered few statements. In all such statements, the

complainant was inconsistent about the money he has lent to the

accused. The above fact is evident from Exs.P.50 to 52. Despite

such a glaring infirmity with respect to the claim of the

complainant, the Trial Court and the Appellate Court have failed

to appreciate the said evidence. The main contention of the

petitioners is that he has availed the loan of Rs.5 lakhs by

issuing blank signed cheques, signed blank promissory notes,

signed blank bond papers and signed white sheets as security

and the said defence was not accepted by both the Courts.

5. The learned counsel for the petitioners would

contend that the Trial Court failed to take note of the earlier

legal notice dated 23.01.2016. The documents Exs.D.4 to 7,

altogether speaks in different tone and inspite of it, Ex.P.5 legal

notice is accepted by the respective Courts. Ex.P.49 is said to be

the document executed in favour of Mrs. Rekha. The said person

has not been examined to prove his case. Ex.P.21 is also the

document of pronote consideration receipt executed in the name

of Rekha. These documents shows that an amount of Rs.3 lakhs

was given to the accused. Though the accused has disputed

regarding execution of these documents, the complainant has

not examined her in support of his claim. The Trial Court was

pleased to refer Ex.P.2 and 40 for forensic examination to obtain

the expert's opinion. The opinion of the expert was marked as

Ex.C.1. In the said report, it is stated that the tint of the ink and

luster appears similar in the cheque however, the possibility that

both the cheques could have been written with the same

instrument and at the same time cannot be ruled out. Inspite of

the said report, both the Courts have committed an error. The

learned counsel would vehemently contend that the Trial Court

has not discussed the cause of action arisen with regard to the

claim is concerned. The learned counsel would contend that in

the chief examination, the complainant improved his case, but

no such averments in the complaint regarding improvisation in

the complaint. Hence, the order passed by the Trial Court

suffers from legality and its correctness.

6. Per contra, the learned counsel for the respondent

would submit that the amount was paid for a period of three

years and in pursuance of the receipt of the said amount, on

different dates he has executed the promissory notes, which are

marked before the Trial Court and also acknowledged the receipt

of the said amount. The revision petitioner not disputed those

documents, including the document Ex.P.2 issued in the year

2007. The learned counsel submits that the petitioner himself

has given the complaint against the respondent herein, wherein

he has categorically admitted that he had the financial

transaction with the respondent. The Trial Court has taken note

of the documents, particularly the cheque and the promissory

note executed by the petitioner herein. The learned counsel for

the petitioners argued with regard to Exs.D.4 to 7 and those

documents are legal notices issued by the respondent prior to

the issuance of the subject matter of the cheque and apart from

that, before issuance of the subject matter of the cheque, the

petitioner categorically admitted in the deposition given before

the Trial Court in the case filed by him against the petitioner that

they have compromised the matter. Hence, the very contention

that the present cheque as well as the notices issued is a

subsequent cheque and second time notices has been issued and

no cause of action cannot be accepted. The documents which

have been marked as Exs.D.4 to 7, no consequence at all. The

learned counsel would contend that Ex.P.5 is the legal notice and

both the Courts have considered the valid service of notice since

the petitioner has categorically admitted in one of the notices

that he was residing at the time of issuance of notice and last

known address only notices are served, which have been sent

through registered post as well as certificate of posting. The

learned counsel brought to the notice of this Court that earlier

the matter was remanded and reconsidered and nothing is

placed regarding rebuttal evidence. The learned counsel submits

that inspite of the interim order passed by this Court, no amount

is deposited by the revision petitioners.

7. In reply to the arguments of the learned counsel for

the respondent, the learned counsel for the petitioners submits

that the respondent has suppressed the materials facts before

the Court and hence it requires interference of this Court.

8. Having heard the respective learned counsel and also

on perusal of the material available on record, the points that

arise for the consideration of this Court are:

(i) Whether the Courts below have committed an error in convicting and sentencing the petitioners and both the Courts orders suffers from legality and correctness and whether it requires invoking of revisional jurisdiction?

(ii) What order?

Point No.(i):

9. Having perused the material available on record, it is

the claim of the respondent that the petitioner has issued the

cheque for an amount of Rs.38,50,000/- and cheque which is

marked as Ex.P.2 is not disputed by the petitioner and the same

is admitted. The main contention of the learned counsel for the

petitioners is that notice Ex.P.5 is very cryptic and not given any

details of the financial transaction. The said contention cannot

be accepted for the reason that the very petitioner himself has

acknowledged the receipt of the amount of Rs.26 lakhs in terms

of Ex.P.26 that was issued in the year 2004. Hence, it is clear

that there was a transaction between the petitioner and the

respondent. It is also important to note that the

complainant/respondent not only got marked Ex.P.2 cheque and

also issued the legal notice Ex.P.5. No doubt, the postal receipts

discloses the issuance of notices against the petitioners in

respect of four addresses and Exs.P.10 to 13 are the notices

returned unserved and Exs.P.14 to 17 are postal covers. In the

cross-examination, the petitioner has categorically admitted that

out of four addresses, admitted one of the address and based on

the said admission and taking note of the postal receipts having

sent the notices through certificate of posting also, the Trial

Court comes to the conclusion that the notice has been served.

Hence, the very contention that the notice has not been served

to the petitioner cannot be accepted. The Trial Court also taken

note of the judgment of the Apex Court and also the General

Clauses Act for having deemed service.

10. The other contention of the petitioner that he had

availed an amount of Rs.5 lakhs only and not more than that

also cannot be accepted in view of Ex.P.26, acknowledgment

issued by the revision petitioner. The petitioner himself

admitted that he has received an amount of Rs.26,50,000/- and

if really he has taken only an amount of Rs.5 lakhs, what made

him to give such an endorsement in terms of Ex.P.26, no

explanation on the part of the revision petitioner. It is also

important to note that the petitioner gave the statement before

the police and contents of the complaint also clear that he had

availed the loan from the respondent herein but in that

statement also he has not disclosed how much amount he has

received. It is important to note that Exs.P.18 to 25 on demand

pronotes and consideration receipts are also got marked along

with the signatures of the petitioner herein and those documents

are also not disputed by the revision petitioner and what made

him to execute those number of pronotes and consideration

receipts, if really he has taken only an amount of Rs.5 lakhs,

there is no explanation on the part of the petitioner. It is

important to note that the revision petitioner had also given the

complaint and the complainant also filed the complaint and there

was a criminal case against the respondent in

C.C.No.234972005. The order sheet is also produced before the

Court. Ex.P.44 the statement given by Balasubramanya before

the Court is also marked, wherein he has categorically admitted

that they have compromised the matter. It is pertinent to note

that when he had deposed before the Court that they have

compromised the matter, that was in the year 2006, but subject

matter of the cheque was given in 2007 and subsequent to the

compromise and hence it is clear that the petitioner has not

made out his case as to what made him to give cheque for an

amount of Rs.38,50,000/- in the year 2007. The contention

that there were two notices cannot be accepted for the reason

that earlier Exs.D.4 to 7 are issued by the

complainant/respondent before the issuance of subject matter of

the cheque. Those notices are in respect of earlier transaction

and subsequent to subject matter of the cheque Ex.P.2 that

there are no such two notices and hence the said contention

cannot be accepted.

11. The contention of the revision petitioner before this

Court is that both the Courts failed to accept the defence of the

revision petitioner though he examined himself as D.W.1 and

examined other witnesses and the Trial Court also taken note of

though D.W.4 was examined, who is the co-brother, he was not

subjected for cross-examination and his evidence is not

accepted. D.W.5 also speaks with regard to the transaction

between the parties. The documents which have been marked

clearly makes out the case by the complainant/respondent and

not in support of the defence of the petitioner counsel that he

had availed only an amount of Rs.5 lakhs. What made him to

give Ex.P.26 has not been explained. No doubt, it is the

contention of the learned counsel for the petitioners that the

complainant improvised his case in the chief examination, but

the complaint does not disclose all these factors. The complaint

need not necessarily explain all the events. But the respondent

has relied upon the documents Exs.P.1 to 83.

12. The other contention of the learned counsel for the

petitioner is that Ex.C.1 FSL report is clear that tint of the ink

not rules out the issuance of the cheque earlier, but the

petitioner has to rebut the case of the complainant and in order

to rebut the evidence of the complainant though examined five

witnesses, including him and the same is not rebutted since the

complainant evidence proves the case of the complainant and

voluminous documents are marked including Exs.P.18 to 25,

particularly Ex.P.26 in which the revision petitioner has

acknowledged the receipt of the amount and also the statements

made before the police while lodging the complaint against the

respondent herein. Apart from that, after deposition in terms of

Ex.P.44 the subject matter of the cheque was issued and while

issuing the cheque, he had acknowledged the due and when he

did not dispute Ex.P.2 and his signature, the presumption is in

favour of the complainant/respondent and not in favour of the

revision petitioner unless he rebuts the evidence of the

complainant. Though he took the defence that he only availed

the loan of Rs.5 lakhs and not more than that and voluminous

documents particularly Ex.P.18 to 25 and 26 supports the case

of the complainant/respondent.

13. Both the Trial Court as well as the Appellate Court in

detail discussed each and every documents and taken note of

particularly Exs.P.18 to 25, 26 and 44 and no doubt in Exs.P.50

to 52, the complainant/respondent has also given the complaint

and though the learned counsel for the petitioners mainly relied

upon the documents Exs.D.4 to 7 regarding the amount, which

he has received and admitted in earlier documents and those

documents are no consequence in view of execution of Ex.P.2,

subject matter of cheque and hence I do not find any reasons to

come to other conclusion that the judgments of the Trial Court

as well as the Appellate Court surfers from legality and

correctness. This Court can only exercise the revisional powers,

if the order suffers from any legality and correctness. The scope

of revision is very limited. The voluminous documents marked in

favour of the complainant/respondent establishes the case of the

complainant. Hence, I do not find any merit to invoke the

revisional powers to set aside the order of conviction and

sentence as well as confirmation made by the Appellate Court

and hence I answer point No.(i) as negative.

Point No.(ii):

14. In view of the discussions made above, I pass the

following:

ORDER

The petition is dismissed.

Sd/-

JUDGE

MD