Sri L Chikkegowda vs Smt. Latha Ashoka
2022 Latest Caselaw 4878 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 16TH DAY OF MARCH, 2022

                         BEFORE

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

          CRIMINAL REVISION PETITION NO.262/2019

BETWEEN:

SRI L CHIKKEGOWDA
AGED ABOUT 79 YEARS
S/O SRI LATE LINGAPPA
R/AT No.512-A, 1ST MAIN ROAD
8TH BLOCK KORAMANGALA
BANGALORE-560095
                                            ... PETITIONER

             (BY SRI B.N. JAYADEVA, ADVOCATE)

AND:

SMT. LATHA ASHOKA
W/O SRI K.ASHOKA
AGED ABOUT 44 YEARS
R/AT No.SB-2, VIJAYA ENCLAVE
BILEKAHALLI, BANNERGHATTA ROAD
BANGALORE - 560 076
                                           ... RESPONDENT

         (RESPONDENT SERVED AND UNREPRESENTED)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION UNDER SECTION 397 R/W 401 OF CR.P.C. PRAYING TO
SET ASIDE THE JUDGMENT AND SENTENCE DATED 11.05.2016
PASSED IN C.C.NO.14334/2015 ON THE FILE OF THE HON'BLE
XXI   ADDITIONAL   CHIEF   METROPOLITAN     MAGISTRATE
BENGALURU AND ETC.
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    THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:


                               ORDER

This matter is listed for admission. Heard the learned

counsel for the petitioner and the respondent though served, did

not choose to engage any counsel for appear before the Court.

2. The factual matrix of the case of the

complainant/respondent before the Trial Court is that this

petitioner/accused had received a sum of Rs.10 lakh from the

respondent/complainant for allotting a site in the layout formed

or being formed by him and his relatives at Pilleguppa village,

Hosakote taluk through RTGS to the account of the accused

maintained at Federal Bank, Gandhinagar Branch, Bangalore

from her banker M/s. Karnataka Bank Limited, J.P.Nagar Branch,

Bangalore. Thereafter, the respondent learnt that the petitioner

has neither acquired any land nor formed any layout and

attempted to defraud the respondent and on demand to return

the said amount, the petitioner had issued two cheques for a

sum of Rs.5 lakh each and when the said cheques were

presented, they were returned with the shara "funds

insufficient". Thereafter, the legal notice was issued calling upon

the petitioner to pay the cheques amount and even after

receiving the demand notice, the petitioner had failed to pay the

cheques amount and hence, the respondent initiated the

proceedings under Section 200 of Cr.P.C for the offence

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

case, the cognizance was taken and summons was issued to the

petitioner and the same was returned as refused. Thereafter,

the petitioner appeared before the Court and contested the

matter. The Trial Court after considering both the oral and

documentary evidence, convicted the petitioner for the offence

punishable under Section 138 of N.I.Act. Being aggrieved by the

said order, an appeal was preferred by the petitioner and the

Appellate Court also on re-appreciation of the material available

on record dismissed the appeal. Hence, the present revision

petition is filed before this Court.

3. The main contention of the learned counsel

appearing for the petitioner is that notice issued against the

petitioner was not properly served and at that time he was not in

the country and the postal acknowledgment also not pertains the

signature of any of the family members of the petitioner and

when there is no proper service of notice, both the Courts have

committed an error in coming to the conclusion that notice was

served and not complied with the demand. The counsel also

would contend that the complainant has not examined the

witness who has introduced the petitioner and the respondent

and ought to have been examined the said witness. Hence, it

requires interference of this Court.

4. Having heard the learned counsel appearing for the

petitioner and also on perusal of the material available on record

particularly, the order of the Trial Court, the Trial Court

considered the grounds urged by the petitioner since the

petitioner himself examined as DW1 took the specific defence

that notice was not served on him. In this regard, the Trial

Court in paragraph 16 taken note of Ex.P5, a copy of the

demand notice and also Ex.P6 to P8 i.e. due service of demand

notice. The accused disputed the service of demand notice-

Ex.P5 through the registered post and also taken note of the

summons issued to accused through Court was returned

unserved with the report of PSI, Girinagara police station as

"accused refused to receive the summons" and hence, NBW was

issued. It is also observed that the accused appeared before the

Court voluntarily on 27.08.2015 by advancing the case. It is

also observed that the address for which the summons and NBW

issued to the accused corroborates with the address for which

the demand notice Ex.P5 has been sent to the accused. It is not

the case of the accused that he was not residing in the address

for which the demand notice-Ex.P5 has been sent as on the date

of its issuance. It is also observed that nothing prevented the

accused to produce any of his address proof to prove that he

was not residing in the address for which the demand notice has

been sent. The Trial Court also observed that Ex.P7 - postal

acknowledgment card also proves the due service of demand

notice through the registered post sent under Ex.P6. But the

very contention of the learned counsel for the petitioner is that

the acknowledgment which has been produced in terms of Ex.P7

does not bears the signature of the petitioner as well as any of

the family members of the petitioner.

5. The Appellate Court in criminal appeal regarding

service of notice is concerned discussed in detail in paragraph

No.21 and taken note of the specific defence of the accused that

he has not received any notice and also taken notice of his

evidence. It is observed that the evidence of D.W.1 discloses

that the husband of the complainant had approached him to

purchase the land. In this regard, the husband of the

complainant has deposited a sum of Rs.10 lakhs on 22.10.2003

and there is no dispute with regard to payment is concerned

through RTGS and the said agreement was cancelled. It is also

observed that in the cross-examination, he has admitted that

after retirement from service, he is carrying on the real estate

consultation working and he is residing in the address mentioned

in the complaint and further admitted that the notice has been

sent to the address mentioned in the complaint and Ex.P.7 and

the acknowledgment contains the address mentioned in the

complaint. He has only taken the defence that notice has not

been served on him personally. The Appellate Court considering

the defence and on careful perusal of the document Ex.P.7,

observed that it reveals that it bears the address shown in the

complaint. It is also admitted by the petitioner that it bears the

signature of one Sri Ashok, who is none other than the husband

of the complainant according to the accused. Except this,

nothing has been elicited in his evidence or in the cross-

examination of P.W.1. Though, the accused has contended that

Ex.P.7 is received by Sri Ashok, who is none other than the

husband of the complainant, in this regard, neither he has stated

in the complaint nor he has elicited the same from the mouth of

P.W.1 in the cross-examination. More so, he has admitted that

he is residing in the address shown in the complaint and also

taken note of the notice is sent to the same address, which has

been duly served. Merely because it does not bear the signature

of the complainant, it cannot be held that the notice is not duly

served and hence the defence of the petitioner is not accepted.

6. Having considered the reasons given by the Trial

Court and the First Appellate Court, it is not the case of the

petitioner that the address which is mentioned in the complaint

as well as in the notice sent to him is not the address of this

petitioner. He admits that the said address belongs to him.

When such being the factual aspects of the case and also taking

note of the fact that the address is not disputed by the

petitioner, now he cannot contend that the address does not

belongs to him. The only contention is that he was not in the

country at the time of issuance of notice and to substantiate the

said contention also, he has not placed any document before the

Trial Court. When the address is rightly mentioned in the

complaint as well as the notice and apart from that, summons

was issued in respect of same address and the same was

returned with an endorsement "same was refused" and the Trial

Court issued NBW and before the execution of NBW, the

petitioner himself appeared before the Court voluntarily and

hence it is clear that he is residing in the very same address and

throughout in the proceedings he categorically admitted the very

same address. When such being the factual aspects, the very

contention of the petitioner cannot be accepted. The scope of

revision is very limited and both the Courts have given the

finding with regard to service of notice is concerned and taken

note of the address, which is mentioned in the complaint as well

as notice and the same has not been disputed by the petitioner

herein. When such being the factual aspects, I do not find any

ground to interfere with the findings of the Trial Court. With

regard to the merit of the case is concerned, the amount is paid

through RTGS is not in dispute. Two cheques were issued and

they were dishonoured and the notice was given and inspite of

notice, he did not comply with the demand. When the cheques

are not disputed and the transaction is not disputed for having

received an amount of Rs.10 lakhs, that too to give a site and no

such site was given and subsequently agreement was also

cancelled and payment was made towards the amount which he

has received. When such being the factual aspects of the case,

on merits also no grounds are made out.

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

following:

ORDER

The revision petition is dismissed.

Sd/-

JUDGE

SN/MD