Rajanna vs Lokesh B
2023 Latest Caselaw 5833 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF AUGUST, 2023

                       BEFORE

   THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

 CRIMINAL REVISION PETITION NO.672 OF 2018

BETWEEN:

RAJANNA,
AGED ABOUT 46 YEARS,
OCCUPATION WORKING IN BANK,
R/AT. NO.10, 5TH CROSS,
GAJANANA NAGAR, HEGGANHALLI,
VISHWANEEDAM POST,
BENGALURU-560 091.
                                          ....PETITIONER

(BY SRI. GANGAIAH AND SRI. SANJIVA .V BELAGALI,
ADVOCATES)

AND:

LOKESH .B S/O. BORAIAH,
AGE ABOUT 36 YEARS,
RESIDING AT
SEETHARAMALINGESHWARA NILAYA,
1ST MAIN ROAD, MUNESHWARA BLOCK,
HEGGANHALLI, VISHWANEEDAM POST,
BENGALURU-560 091.
                                         ...RESPONDENT
(BY SRI. SHARATH .S GOWDA, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE
THE JUDGMENT AND ORDER PASSED BY LEARNED LXVIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
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CITY (CCH-69) IN CRIMINAL APPEAL NO.567/2017, DATED
21.04.2018 (ANNEXURE-A) AND ETC.

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 07.08.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:

                          ORDER

This revision petition is filed under Sections 397

and 401 of Cr.P.C. challenging the judgment of conviction

and order of sentence dated 24.03.2017 passed by the

22nd ACMM, Bengaluru City, in CC No.18223/2016 and

confirmed by the 68th Additional City Civil and Sessions

Judge, Bengaluru City, in Criminal Appeal No.567/2017

vide judgment dated 21.04.2018.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the trial Court.

3. The brief factual matrix leading to the case

are that, the complainant and accused are friends and in

the second week of January 2016 the accused had

approached the complainant for financial assistance of

Rs.2,30,000/- for construction of the house on the site

standing in the name of his wife Smt.Sundaramma, with

an assurance to repay the same within three months.

The complainant has paid the amount by way of hand on

18.01.2016 and in that regard, the accused has executed

an On-demand Promissory Note with Consideration

Receipt. The accused did not repay the loan amount

within three months as agreed and on a demand for

repayment of the said loan amount by the complainant,

the accused issued a cheque under Ex.P1 dated

31.05.2016 and when he said cheque was presented to

the bank for encashment, the same was dishonoured for

Insufficient Funds. Hence, the complainant has issued a

legal notice to the accused and the legal notice was

served on the accused, but, he did not respond. Hence, a

complaint came to be lodged.

4. The learned Magistrate has taken cognizance

and issued process. The accused has appeared through

his counsel and was enlarged on bail. He denied the

accusation.

5. The complainant was examined as PW.1 and

he placed reliance on 13 documents marked at Exs. P1 to

P13. After conclusion of evidence of the complainant, the

statement of accused under Section 313 of Cr.P.C. was

recorded to enable the accused the explain the

incriminating evidence appearing against him in the case

of prosecution. The case of accused was total denial. The

accused himself got examined as DW.1 and two

witnesses were examined on his behalf as DWs.2 and 3

and he has also placed reliance on Ex.D1.

6. After hearing the arguments and after

appreciating the oral and documentary evidence, the

learned Magistrate has convicted the accused for the

offence punishable under Section 138 of the Negotiable

Instruments Act, 1881 and imposed fine of

Rs.2,35,000/- with default sentence. Being aggrieved by

this judgment of conviction and order of sentence, the

accused has approached the 68th Additional City Civil and

Sessions Judge, Bengaluru City, in Criminal Appeal

No.567/2017. The learned Sessions Judge after re-

appreciating the oral and documentary evidence has

dismissed the appeal by confirming the judgment of

conviction and order of sentence passed by the trial

Court. Being aggrieved by these concurrent findings, the

revision petitioner is before this Court by way of this

revision petition.

7. Heard the arguments advanced by the learned

counsel for the revision petitioner and the learned

counsel for the respondent. Perused the records.

8. Learned counsel for the revision

petitioner/accused would contend that, the allegations in

the complain are regarding payment of loan amount of

Rs.2,30,000/- and in Legal Notice at Ex.P4 a demand was

made for payment of Rs.3,40,000/- and hence, the legal

notice is not in compliance with the provisions of law and

in this context, he placed reliance on a decision reported

in (2008) 2 SCC 321 [Rahul Builders Vs. Arihant

Fertilizers and Chemicals and Another]. Hence, he

would contend that both the Courts below have ignored

this aspect and sought for allowing this revision by

setting aside the impugned judgment of conviction and

order of sentence passed by both the Courts below.

9. Per contra, the learned counsel for the

respondent/complainant would contend that, the demand

was made only in respect of cheque amount and

Rs.3,40,000/- is referred only by typing error and notice

is to be read as a whole. He would further invite the

attention of the Court to the reply and notice, wherein

the accused has understood that the demand was in

respect of the cheque amount, which came to be disputed

and hence, now the petitioner/accused cannot avail the

benefit of this aspect and hence, he would seek for

dismissal of the revision petition.

10. Having heard the arguments and after

appreciating the oral and documentary evidence, now the

following point would arise for my consideration:

"Whether the judgment of conviction and order of sentence passed by the trial Court and confirmed by the First Appellate Court are perverse, erroneous & arbitrary so as to call for any interference?"

11. It is the case of prosecution that, the accused

has availed hand loan of Rs.2,30,000/- and in discharge

of the said liability, he has issued a cheque under Ex.P1

for Rs.2,30,000/- . Ex.P1 is the cheque and Ex.P3 is the

On-demand Promissory note and consideration receipt.

Ex.P3 would clearly establish that, accused has availed

hand loan of Rs.2,30,000/- . The complainant has also

issued a legal notice as per Ex.P4 and the same was

replied by the accused under Ex.P9. No doubt, in Ex.P4

in Para No.4, there is a reference of Rs.3,40,000/-. But,

it is also important to note here that, what is referred

Ex.P4 is entire cheque amount of Rs.3,40,000/-, but in

Para Nos.1 & 2 and there is a specific assertion that the

cheque was issued for a sum of Rs.2,30,000/- and loan

amount was Rs.2,30,000/-, and it is evident that in Para

No.4, the cheque amount was wrongly typed as

3,40,000/- instead of Rs.2,30,000/-. Further, this aspect

is consolidated by reply notice issued by the accused

under Ex.P9. On perusal of Ex.P9, it is evident that the

accused has disputed the claim. But, he has understood

the legal notice and contents of the same, and asserted

that he has not availed loan of Rs.2,30,000/- and cheque

was not issued for that amount.

12. The simple defence of accused is that the

blank cheque and On-demand Promissory Note are given

as collateral security in respect of a Chit Fund transaction

with the complainant. However, the accused has not

placed any material to show that the complainant was

running any Chit Fund business and DWs.2 and 3 were

the members of the Chit Fund business. Though DWs. 2

& 3 had deposed regarding Chit Fund Business, but there

is no document to show that they were part of the Chit

Fund transaction. Hence, the defence raised by the

accused is not probable.

13. On the contrary, facts that the signature on

the cheque and the cheque belongs to the accused, are

undisputed. Further, again it is corroborated by Ex.P3,

which is the On-demand Promissory Note and the

Consideration Receipt. Hence, the initial presumption is

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

Act, and the accused has failed to rebut the said

presumption.

14. Learned counsel has only harped on reference

of amount of Rs.3,40,000/- in Para No.4 of the legal

notice at Ex.P4 and hence, he would contend that the

legal notice is not in accordance with law. In this regard,

he placed reliance on a decision in the case of Rahul

Builders cited supra. But, the facts and circumstances

of the said case are entirely different. In the said case,

the out-standing amount due was Rs.8,72,409/- and the

cheque was issued for Rs.1,00,000/-. But, the notice was

not issued for cheque amount of Rs.1,00,000/-, but, it

was issued for out-standing balance amount of

Rs.8,72,409/-. In that context, it is held that the legal

notice is not in accordance with law. In the said case, the

accused was called-out to remit the payment of his

pending bills to the tune of more than Rs.8,72,409/-.

But, there was no demand for cheque amount. But, in

the instant case, a demand was for cheque amount only

and in the legal notice at Ex.P4, it is clearly specified as

to what is the cheque amount. But, however, in Para

No.4, the cheque amount was wrongly mentioned as

Rs.3,40,000/-. But, in Para Nos.1 & 2, it is specifically

asserted that the cheque is for Rs.2,30,000/- only.

Further, this is again consolidated by the reply notice by

the accused. Hence, considering these facts and

circumstances, the principles enunciated in the above

cited decision cannot be made applicable to the facts and

circumstances of the case in hand. The accused has

failed to rebut the presumption in favour of the

complainant and defence raised by him is not a probable

defence.

15. Under such circumstances both the Courts

below are justified in convicting the accused by imposing

sentence of fine. No perversity or illegality is found in the

judgment of conviction and order of sentence passed by

both the Courts below so as to call for any interference by

this Court. As such, the point under consideration is

answered in the negative and hence, the revision fails.

Accordingly, I proceed to pass the following:-

ORDER

i) The revision petition is dismissed.

ii) The impugned judgment of conviction and order of sentence dated 24.03.2017 passed by the 22nd ACMM, Bengaluru City, in CC No.18223/2016 and confirmed by the 68th Additional City Civil and Sessions Judge, Bengaluru City, in Criminal Appeal No.567/2017 vide judgment dated 21.04.2018, stand confirmed.

iii) The bail bonds stand cancelled.

iv) The trial Court is directed to secure the presence of the accused for the purpose of recovery of the fine amount or else to serve the default sentence as ordered by the trial Court.

v) The Registry is directed to send back the original records to the concerned trial Court and the First Appellate Court along with a copy of this order.

vi) The amount if any deposited by the accused/revision petitioner before this Court shall be transmitted to the trial Court in order to pay the same to the complainant.

Sd/-

JUDGE

KGR*