Anand vs S Gopalakrishna
2023 Latest Caselaw 425 Kant

                                            -1-
                                                      CRL.RP No. 1363 of 2018




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 6TH DAY OF JANUARY, 2023

                                          BEFORE
                       THE HON'BLE MR JUSTICE R. NATARAJ
                  CRIMINAL REVISION PETITION NO. 1363 OF 2018
            BETWEEN:

            ANAND
            S/O SHIVAKUMAR,
            AGED ABOUT 32 YEARS,
            RESIDENT OF SIDDESHWARA NILAYA,
            III CROSS, SUGAR TOWN,
            MANDYA CITY,
            MANDYA TALUK AND DISTRICT-571401.

                                                                  ...PETITIONER
            (BY SRI. RAJA L., ADVOCATE)

            AND:

            S. GOPALAKRISHNA
            S/O LATE SRINIVASAIAH,
            AGED ABOUT 33 YEARS,
            RESIDENT OF SATHANURU VILLAGE,
            KASABA HOBLI,
            MANDYA TALUK AND DISTRICT-571401.
Digitally
signed by                                                        ...RESPONDENT
SUMA
Location:   (BY SRI. SANTHOSH S. GOGI, ADVOCATE)
HIGH
COURT OF
KARNATAKA          THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
            SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973
            PRAYING TO SET ASIDE THE ORDER DATED 10.09.2015 PASSED BY
            THE     JUDICIAL   MAGISTRATE     FIRST     CLASS,   MANDYA    IN
            C.C.NO.272/2011 AND JUDGMENT DATED 28.09.2018 PASSED BY
                               -2-
                                      CRL.RP No. 1363 of 2018




THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA IN
CRL.A.NO.15/2018.

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

                           ORDER

The petitioner has called in question the judgment passed

by the Judicial Magistrate First Class, Mandya (henceforth

referred to as 'Trial Court' for short) in C.C.No.272/2011

convicting him for the offence punishable under Section 138

Negotiable Instruments Act, 1881 and consequent sentence

directing him to pay a fine of Rs.2,82,000/-, failing which, he

was directed to undergo simple imprisonment for one year,

which was confirmed by the IV Addl. District and Sessions

Judge, Mandya (henceforth referred to as 'Appellate Court' for

short).

2. The facts as stated by the respondent/complainant

are that the petitioner had borrowed a sum of Rs.2,80,000/-

from the respondent on 12.01.2010 and had issued a cheque

bearing No.810686 dated 08.07.2010 towards discharge of the

said loan. The said cheque on presentation for encashment was

CRL.RP No. 1363 of 2018

dishonoured as the account was closed. The respondent

therefore, issued a notice of demand by RPAD as well as

Certificate of Posting. The notice sent through RPAD was not

claimed, while the one sent through Certificate of Posting was

not returned. The respondent therefore, alleged that the

petitioner had knowledge of the notice of demand but failed to

comply with the demand and hence, initiated prosecution to

prosecute the petitioner for the offence punishable under

Section 138 of the Negotiable Instruments Act, 1881. The

sworn statement of the respondent was recorded and

C.C.No.272/2011 was registered and process was issued to the

petitioner. The petitioner appeared and pleaded not guilty and

claimed to be tried. Consequently, the respondent was

examined as PW.1 and Exs.P1 to P8 were marked. The

statement of petitioner was recorded under Section 313 of

Cr.P.C., who denied the evidence and examined himself as

DW.1.

3. Based on the oral and documentary evidence, the

Trial Court held that the petitioner was not able to establish his

defence that he had given the cheque to a person named

CRL.RP No. 1363 of 2018

Mr.Krishna from whom he had borrowed a loan of Rs.10,000/-

and that the respondent took the cheque from the said

Mr.Krishna and misused it. The Trial Court noticed that the

petitioner did not deny his signature on the cheque and

therefore, drew the presumption under Section 139 of the

Negotiable Instruments Act, 1881. It held that the petitioner

did not rebut the presumption by leading acceptable evidence.

Consequently, it held that the cheque was issued towards

discharge of a debt due by the petitioner to the respondent. In

so far as the contention that the notice of demand was not

served upon the petitioner, the Trial Court held that the

respondent had complied with the requirement prescribed

under proviso (a) to (c) of Section 138. The Trial Court

therefore, convicted the petitioner for the offence punishable

under Section 138 of the Negotiable Instruments Act, 1881 and

sentenced him to pay a fine of Rs.2,82,000/- and in default, to

undergo simple imprisonment for one year. The petitioner

challenged this judgment of conviction and sentence before the

Appellate Court in Crl.A.No.15/2018, which was dismissed.

CRL.RP No. 1363 of 2018

4. Being aggrieved by the same, the present revision

petition is filed.

5. The learned counsel for the petitioner submitted

that service of notice of demand was mandatory. He submitted

that the postal cover indicated that it was not claimed by the

petitioner. He submitted that it was incumbent upon the postal

authorities to ensure that information of the registered post is

left at the address of the petitioner, which was not evident. He

therefore, submitted that there was no proper service of notice

of demand. He further submitted that the respondent did not

establish his financial ability to pay a sum of Rs.2,80,000/- to

the petitioner and the Trial Court did not go into this question.

He further contended that the cheque in question was issued

from an account, which was closed and therefore, probablised

the defence that the cheque was not issued in the year 2010,

but was issued long before that. He thus, contended that this

cheque was issued to Mr.Krishna, which is now misused by the

respondent.

CRL.RP No. 1363 of 2018

6. Per contra, the learned counsel for the respondent

submitted that the petitioner did not deny the receipt of the

notice of demand when he cross-examined PW.1. He further

submitted that the petitioner had obtained a hand loan of

Rs.2,80,000/- to purchase a vehicle. He further contended that

the petitioner had set up an improbable defence that he had

given the cheque in question to Mr. Krishna at the time of

raising a loan of Rs.10,000/- from him. He contended that this

defence was an afterthought as the petitioner did not mention

anything in his statement under Section 313 of Cr.P.C. He did

not even examine Mr. Krishna to establish his defence.

7. I have considered the submissions made by the

learned counsel for the petitioner as well as the learned counsel

for the respondent.

8. The petitioner has not denied that the cheque in

question was issued from his account. He has also not denied

the signature found on the cheque. Though the petitioner

claimed that this cheque was given to a person named

Mr.Krishna when he raised a hand loan of Rs.10,000/-, he did

CRL.RP No. 1363 of 2018

nothing to establish the said fact. He did not even summon the

said Mr.Krishna to the Court to prove the said defence. Since a

case under Section 138 of the Negotiable Instruments Act,1881

has to be decided on preponderance of probabilities, the

material placed on record indicate that the cheque in question

was drawn by the petitioner towards discharge of a debt. The

finding of the Trial Court and the Appellate Court in this regard

cannot be doubted. The claim of the petitioner that the notice

of demand was not served upon him is liable to be rejected

since the notice was sent to the proper address of the

petitioner and the cover containing the notice was duly

stamped, raising a presumption under Section 27 of the

General Clauses Act, 1897. The notice of demand was

returned unserved as the same was not claimed by the

petitioner, which constituted deemed service.

9. In that view of the matter, the Trial Court and the

Appellate Court were justified in convicting the petitioner for

the offence punishable under Section 138 of the Negotiable

Instruments Act, 1881. There is no error apparent on the face

of the record or any material irregularity in the trial of the case

CRL.RP No. 1363 of 2018

warranting interference with the judgment of conviction and

sentence passed by the Trial Court, which is confirmed in

appeal by the Appellate Court.

10. Hence, this revision petition lacks merit and is

dismissed.

11. The Trial Court shall take into consideration any

amount deposited by the petitioner while enforcing the order of

sentence.

Sd/-

JUDGE

PMR