Karnataka High Court
Sri.B.K.Krishnamurthy vs Sri.N.Ravindra Reddy on 18 November, 2023
Bench: H.P.Sandeshpresided Byhpsj
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CRL.RP No. 556 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 556 OF 2016
BETWEEN:
1. SRI B.K.KRISHNAMURTHY
S/O LATE KRISHNAPPA
AGED ABOUT 40 YEARS,
RESIDING AT B.K.GROUP
AUTO CONSULTANT,
HULUBAVI ROAD
VARTHUR VILLAGE
BANGALORE-560087
...PETITIONER
Digitally signed by
SHARANYA T (BY SRI SAMEER S.N., ADVOCATE)
Location: HIGH AND:
COURT OF
KARNATAKA
1. SRI N.RAVINDRA REDDY
PROPRIETOR,
SREE RAMA ENTERPRISES
STOCKIST IN STEEL,
CEMENT AND A.C.SHEETS,
GUNJUR MAIN ROAD, VARTHUR
BANGALORE-560 087.
...RESPONDENT
(BY SRI SHARATH KUMAR H.N., ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENTS OF THE LVII ADDL.
CITY CIVIL AND S.J., MAYO HALL UNIT, BANGALORE (CCH-58)
PASSED IN CRL.A.NO.25054/2015 DATED 17.03.2016
CONFIRMING THE JUDGMENT OF CONVICTION PASSED BY THE
XIV A.C.M.M., MAYO HALL UNIT, BANGALORE IN
C.C.NO.26158/2012 DATED 30.03.2015.
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CRL.RP No. 556 of 2016
THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and learned
counsel for the respondent.
2. The factual matrix of the case of the complainant
before the Trial Court is that the complainant is the proprietor
of Sri Ram Enterprises, Stockiest in steel, cement and AC
sheets and the accused was a regular customer of the
complainant. The accused had purchased the materials on
credit basis from the complainant shop for an amount of
Rs.2,00,000/- and towards his liability, the accused has issued
three cheques i.e., one cheque for Rs.1,00,000/- and two
cheques for Rs.50,000/- each. When the said cheques were
presented for encashment, the same have been returned with
an endorsement 'funds insufficient'. The complainant got issued
legal notice through RPAD which was returned with a shar
'party refused' and not paid the cheque amount and thereby
committed offence punishable under Section 138 of Negotiable
Instruments Act.
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3. The accused appeared and contested the matter
denying the case of the complainant. In order to prove his
case, the complainant examined himself as P.W.1 and got
marked the documents as Exs.P1 to P17. On the other hand,
statement of the accused required under Section 313 of Cr.P.C.
was recorded and he examined himself as D.W.1 and got
marked the document as Ex.D1 and during the course of cross-
examination of D.W.1, learned counsel for the complainant
confronted a document and got marked the same as Ex.P18.
4. The Trial Court having considered both oral and
documentary evidence of P.W.1 and the documents Exs.P1 to
P18 and Ex.D1 and also on re-appreciation of both oral and
documentary evidence placed on record, comes to the
conclusion that issuance of cheques is not in dispute and also
drawn the presumption under Sections 118 and 139 of
Negotiable Instruments Act and comes to the conclusion that
the accused-respondent has not rebutted the case of the
complainant and also taken note of the documents Exs.P11 to
P17-cash/credit bills along with copy of e-return annual
statement and purchase invoice entries and convicted the
petitioner herein for the offence punishable under Section 138
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of Negotiable Instruments Act and also ordered to pay the
amount of Rs.3,22,000/- to the complainant and in default of
payment, to undergo simple imprisonment for a period of three
months.
5. Being aggrieved by the judgment of conviction and
sentence, an appeal is filed before the First Appellate Court in
Crl.A.No.25054/2015. The main contention urged in the appeal
is that there is no proper service of notice and when the
complainant has not proved his case, the question of rebuttal
does not arise. The First Appellate Court, having considered
the grounds urged in the appeal formulated the points whether
the Trial Court is justified in convicting the petitioner for the
offence punishable under Section 138 of Negotiable
Instruments Act and whether the Trial Court has not properly
appreciated the material regarding improper service of notice
as contended by the appellant.
6. The First Appellate Court, having reassessed both
oral and documentary evidence placed on record, comes to the
conclusion that the Trial Court has not committed any error in
invoking Section 138 of Negotiable Instruments Act and also
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comes to the conclusion that the admission given by D.W.1
with regard to the address for which notice was issued is held
sufficient and there is no improper service as contended by the
appellant and dismissed the appeal. Hence, this revision
petition is filed before this Court.
7. Learned counsel for the revision petitioner would
vehemently contend that the Trial Court has not appreciated
the evidence on record and erroneously answered the points in
'affirmative'. The counsel also would vehemently contend that
the complainant failed to establish the fact that alleged cheques
were issued for discharging liability with absence of pleadings
regarding advancing of money to the accused and also
committed an error in drawing presumption under Section 139
of Negotiable Instruments Act and the same is a rebuttable
presumption and unless the case of the complainant is proved,
the question of rebutting the case of the complainant does not
arise. The counsel also would submit that Exs.P11 to P17 do
not bear the signatures of the complainant and accused. When
such being the case, the Trial Court ought not to have relied
upon the documents Exs.P11 to P17. The counsel also would
vehemently contend that the First Appellate Court also did not
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appreciate the evidence on record and has blindly accepted the
reasoning given by the Trial Court, inspite of contentions urged
with regard to improper service of notice and not proving the
liability. Hence, it requires interference of this Court. Learned
counsel also brought to notice of this Court answers elicited
from the mouth of P.W.1 in the cross-examination and contend
that even though bills are produced subsequently after cross-
examination of P.W.1, the same do not substantiate the claim
of the complainant.
8. Per contra, learned counsel for the respondent-
complainant would vehemently contend that issuance of
cheques i.e., one cheque for an amount of Rs.1,00,000/- and
two cheques for an amount of Rs.50,000/- each is not disputed
and under what circumstances, those three cheques are given
is not explained by the petitioner herein. The respondent-
complainant also produced the bills Exs.P11 to P17. When the
very transaction was denied by the petitioner herein, in his
defence evidence also, he has not stated anything as to under
what circumstances, he gave those three cheques, if there
exists no transaction between the complainant and the accused
and not rebutted the case of the complainant. Hence, both the
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Trial Court and the First Appellate Court taken note of the same
and drawn the presumption under Sections 118 and 139 of
Negotiable Instruments Act. The counsel would contend that
the scope of revision is very limited and unless the case of the
complainant is rebutted, the question of interference by
exercising revisional jurisdiction does not arise.
9. Having heard the learned counsel for the petitioner,
learned counsel for the respondent and also on perusal of the
material available on record and considering the grounds urged
in the revision petition, the points that would arise for
consideration of this Court are:
(1) Whether the judgment passed by the Trial
Court as well as the First Appellate Court
suffers from its legality and correctness?
(2) What order?
Point No.(1):
10. Having heard the learned counsel for petitioner and
learned counsel for the respondent and also the grounds urged
in the revision petition, the main contention is that there is no
proper service. Learned counsel for the petitioner would
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vehemently contend that transaction has not been proved. It
has to be noted that the complainant in the complaint has
specifically stated that the petitioner herein was a regular
customer of the complainant and he used to purchase the
materials on credit basis and likewise, the respondent had
purchased the material from the complainant shop for
Rs.2,00,000/- and for having purchased the materials, the
respondent had issued subject matter of cheques towards
discharge of his liability. Having perused the averment of
complaint, it is specifically pleaded that the petitioner herein
was a regular customer of the complainant and he used to
purchase the materials on credit basis.
11. No doubt, the complainant-P.W.1 was cross-
examined in length, he reiterates the averments of the
complaint in his chief-evidence. P.W.1 says that accused is a
customer for about 2 to 3 years. But he is not having any
document to show that he is a permanent customer. However,
he claims that he can produce the same. He also admits that he
has not produced any documents as to on which date he has
purchased the materials and also admits that when the material
is supplied, he used to issue receipt and they maintain stock
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register and account. But he has not produced any document
for having purchased the materials to the tune of Rs.2,00,000/.
But, he claims that he can produce the bills. No doubt,
suggestion was made that at no point of time, materials were
purchased, the same was denied. P.W.1 was also re-examined
before the Court and he produced the bills Ex.P11 to P17 i.e., in
total 7 in number and also produced Xerox copy of VAT and
CST. This witness was further cross-examined and in the
further cross-examination, he admits that he has not
mentioned with regard to Exs.P11 to P17 in the legal notice and
also admits that, in the said bills, there is no signature of the
petitioner herein and there was no difficulty for him to get his
signature. Specific suggestion was made that those bills are
created and the same was denied.
12. On the other hand, the petitioner herein is also
examined before the Trial Court. To prove his evidence, he has
produced Election ID card which is marked as Ex.D1 and he
claims that he is not residing in the address for which the
notice was issued. The postal department has also not given
any intimation for having issued the notice and he denies the
fact that he has not given those three cheques to the
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complainant. He was subjected to cross-examination. In the
cross-examination, he admits that police called him to police
station and a document was also confronted to him and the
same was admitted. He admits that in the said document, his
name is mentioned, which is marked as Ex.P18.
13. Having perused the oral evidence of P.W.1 and also
the evidence of D.W.1, no doubt, it is the claim of the petitioner
that he has not made any transaction with the respondent-
complainant herein, it is important to note that in the chief
evidence of the petitioner, he denies that he has not given
these three cheques. But, he did not deny the signatures
available in the cheques, except stating that he has not issued
the cheques. When the cheques are issued and signatures are
not denied, the Trial Court rightly drawn the presumption under
Sections 118 and 139 of Negotiable Instruments Act.
14. It is also important to note that though suggestions
are made in the cross-examination that no such transaction has
taken place between them, once the cheques are issued and
the cheques bear the signature of the petitioner and he has not
denied the signature in the cheques, he has to explain under
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what circumstances, those cheques are given in favour of the
complainant. It is also important to note that Exs.P11 to P17
are subsequently marked when the very transaction was
disputed.
15. In the cross-examination, P.W.1 admits that those
bills do not contain the signatures of the complainant as well as
the accused. It is important to note that when the petitioner
took the defence that there is no proper service of notice, but
when the document of Ex.P18 was confronted to the petitioner,
he admits that Ex.P18-xerox copy of Electric Bill and Identity
card stands in his name. Though he denies the fact that
address to which the notice was issued is not his address, but
the postal endorsement on the registered postal cover is very
clear that the party has refused to receive the same and the
notice was addressed to B.K. Group Consultant, Halabavi Road,
Varthur and the petitioner also not denies the fact that he is
running the business in the name of M/s. B.K. Group Consultant
and the cheque at Ex-P1 is issued by the petitioner under the
company M/s. B.K. Group, no doubt other two cheques are
issued in his individual capacity i.e., B.K.Krishna Murhthy. But,
the fact that Ex.P1 is issued under the name of B.K. Group as a
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Proprietor of the company has not been denied and when the
notice was given to B.K. Group Consultant, the very contention
that no proper service of notice cannot be accepted.
16. The other contention that the complainant has not
proved the very transaction also cannot be accepted since, it is
a specific evidence of the complainant that he is a regular
customer and the same was not denied. No doubt, in the
cross-examination, a suggestion was made that no such
transaction has taken place, but in the chief evidence, the
petitioner has remained silent, except stating that he has not
issued those cheques and even not stated anything about what
made him to issue those three cheques and about the bills
Exs.P11 to P17. These are the factors which are taken note of
by the Trial Court while considering the case of the complainant
in Para Nos.8 and 9 and the Trial Court considered the material
on record and reasoning is also given in Para No.10 with regard
to drawing presumption under Sections 118 and 139 of
Negotiable Instruments Act. If no transaction has taken place,
what made the petitioner to issue the cheques in favour of the
complainant in the name of B.K. Group as proprietor, no
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explanation is offered by the petitioner and it is not his case
that he is not running the business in the name of B.K. Group.
17. When such being the material on record, the very
contention of the petitioner cannot be accepted. Once the
cheques are placed before the Court and the petitioner has not
denied the signatures available in the cheques, except a
general denial that he has not issued the cheques, he has not
given any explanation. The Trial Court has rightly drawn the
presumption under Sections 118 and 139 of Negotiable
Instruments Act and once the issuance of cheque is proved by
the complainant, the same has to be rebutted and no such
rebuttal evidence is placed by the petitioner. Though he has
been examined before the Court, in his chief evidence, except
denying the service of notice and issuance of cheques, no
material is placed before the Court to substantiate this
contention.
18. The First Appellate Court also having reassessed the
material on record, in Para No.13, taken note of both oral and
documentary evidence placed on record and with regard to
proving of the transaction, the complainant has relied upon
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Exs.P11 to P17, credit bills and in order to rebut the claim of
the complainant, no documents are produced and though the
accused took the contention that those three cheques were
issued to the son of the complainant towards chit transaction,
nothing is stated in his chief evidence that those three cheques
were given to the son of the complainant his evidence is silent
with regard to the same and the defence has remained as a
defence. The First Appellate Court also with regard to service of
legal notice observed that even though the accused has relied
upon Ex.D1 to show his address but, he admits in the cross-
examination the contents of Ex.P18 that he was resident of
No.251, Halabavi Road, Varthur and the notice sent was
returned with postal shara 'party refused' and taken note of the
same and rightly comes to the conclusion that the service shall
be held sufficient.
19. Hence, I do not find any error committed by the
Trial Court and the First Appellate Court in appreciating both
oral and documentary evidence placed on record and unless the
Trial Court and the First Appellate Court fail to consider the
material on record, the question of invoking revisional
jurisdiction does not arise. The Court can exercise its revisional
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jurisdiction, only if the material evidence is not considered by
the Courts below and if the order suffers from its legality and
correctness. The petitioner has not made out any ground to
exercise revisional jurisdiction and there is no merit in the
revision. Accordingly, I answer point No.1 as 'negative'.
Point No.2:
20. In view of the discussions made above, I pass the
following:
ORDER
The revision petition is dismissed.
Sd/-
JUDGE
ST
