Karnataka High Court
Mr.Venkatesh vs Sri.C.Kenchaiah on 15 April, 2024
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CRL.RP No. 1313 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL REVISION PETITION NO. 1313 OF 2016
BETWEEN:
MR.VENKATESH
S/O LATE LAKSHMAN RAJU,
AGED ABOUT 49 YEARS,
RESIDING AT NO.59, 2ND CROSS,
CHOWDAIAH BLOCK, R.T.NAGAR,
BANGALORE-560 032.
...PETITIONER
(BY SRI. JAYAPRAKASH SHETTY.B, ADVOCATE)
AND:
SRI.C.KENCHAIAH
S/O MALAVAIAH,
AGED ABOUT 47 YEARS,
RESIDING AT NO.20,
HARISH NILAYA, II MAIN,
Digitally signed by 2ND CROSS, GANGANAGAR,
HARIKRISHNA V BANGALORE-560 003.
Location: HIGH
COURT OF ...RESPONDENT
KARNATAKA
(BY SRI. NAIK RAMACHANDRA RAO, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
10.08.2016 PASSED BY THE LVIII ADDL. CITY CIVIL AND S.J.,
(CCH-59), BANGALORE IN CRL.A.NO.920/2015 THEREBY
CONFIRMING THE JUDGMENT AND ORDER DATED 07.07.2015
PASSED BY THE XVIII A.C.M.M., BANGALORE IN
C.C.NO.21561/2009 BY ALLOWING THIS CRL.RP.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.RP No. 1313 of 2016
ORDER
In this revision petition, the petitioner/accused has
challenged the legality and the correctness of the judgment and
order dated 10.08.2016 passed by the LVIII Additional City
Civil and Sessions Judge, Bengaluru City in Crl.A.No.920/2015,
wherein learned Sessions Judge dismissed the appeal filed by
the petitioner and confirmed the judgment and order dated
07.07.2015 passed by the XVIII ACMM Court, Bengaluru in
C.C.No.21516/2009.
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial Court i.e., the
revision petitioner as accused and the respondent as
complainant.
3. The factual matrix of the case, in brief, is as
follows:
The respondent/complainant filed a private complaint
under Section 200 of Cr.P.C. praying to take cognizance of the
offence punishable under Section 138 of NI Act against the
accused alleging that the accused and the complainant have
entered into an agreement for sale dated 05.01.2007 in respect
of site No.19 situated at Chandranahalli comprised in Survey
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No.40 of Sompura Hobli, Nelamangala Taluk, Bengaluru Rural
District.
4. It is further case of the complainant that at the time
of entering into the said agreement with the accused, he had
paid advance amount of Rs.2,50,000/- to the accused and
subsequently, due to misunderstanding between them, the said
sale transaction was not complete. Therefore, the accused had
issued a cheque dated 26.11.2008 for a sum of Rs.2,50,000/-
drawn on Andhra Bank, Siddartha Public School and College,
Bengaluru in favour of the complainant towards repayment of
advance sale consideration. Accordingly, he presented the said
cheque for encashment, but the same was returned unpaid with
an endorsement 'Funds Insufficient'. Thereby, he got issued
legal notice dated 05.06.2009 to the accused calling upon him
to make payment of the cheque amount. The said notice sent
through registered post so also under certificate of posting. The
registered post was returned to the sender with an
endorsement 'not claimed'. However, notice sent through
certificate of posting was served on the accused. Since the
accused failed to comply with the legal notice by paying the
cheque amount, the complainant filed a private complaint
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before the trial Court. Subsequently, learned Magistrate took
cognizance of the offence and issued summons to the accused.
Consequently, the accused entered his appearance and the
case tried before the learned Magistrate in C.C.No.21561/2009.
5. In order to prove his case before the trial Court, the
complainant examined himself as PW.1 and got marked 9
documents as Exs.P1 to P9. The accused has also examined
himself as DW.1, however, he has not got marked any
document on his behalf.
6. After analyzing all the evidence and materials, the
trial Court convicted the accused for the offence punishable
under Section 138 of NI Act and sentenced him to pay a fine of
Rs.5,00,000/- and in default to undergo simple imprisonment
for one year. It is also directed by the trial Court that out of
fine amount of Rs.5,00,000/-, Rs.4,85,000/- has to be paid to
the complainant as compensation and Rs.15,000/- shall be
defrayed to the State for expenses incurred in the prosecution.
The said judgment and order passed by the trial Court was
challenged by the accused before the First Appellate Court in
Crl.A.No.920/2015.
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7. The First Appellate Court, after considering the facts
and circumstances of the case so also after re-appreciating the
evidence available on record, dismissed the appeal filed by the
accused and confirmed the judgment and order passed by the
trial Court as stated supra. Hence, this revision petition.
8. I have heard Sri Jayaprakash Shetty.B., learned
counsel for the revision petitioner/accused so also Sri Naik
Ramachandra Rao, learned counsel for the
respondent/complainant.
9. It is the primary contention of the learned counsel
for the revision petitioner/accused that the Appellate Court
erred while confirming the conviction judgment and order
passed by the trial Court, wherein the name of the respondent
has not been shown in the cause title instead a new person
name was incorporated in the place of the respondent and the
said person no way connected to the facts and circumstances of
the case. Hence, according to the learned counsel, judgment
and order passed by the First Appellate Court has to be set
aside on that ground alone. He would further contend that both
the trial Court as well as the First Appellate Court failed to
appreciate the evidence available on record in a proper
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perspective and committed an error by convicting the accused
for the offence punishable under Section 138 of the NI Act. He
would further contend that the legal notice caused by the
complainant to the accused as per Ex.P4 was not served to the
accused. According to him, the accused was residing at
R.T.Nagar during that period, but the legal notice was
addressed to Bhuvaneshwari Nagar, Bengaluru. Further,
endorsements dated 12.06.2009 and 13.06.2009 also show as
'door locked'. As such, it is clear that the accused was not
residing in the said place and hence, non-service of demand
notice sent by the complainant itself vitiates the entire
proceedings. He would also contend that both the trial Court so
also the First Appellate Court have failed to consider the fact
that the agreement of sale dated 05.01.2007 depicts that the
complainant had paid only Rs.1,00,000/- to the accused.
However, there is no such mention of payment of balance
amount of Rs.1,50,000/-. As such, the complainant has failed
to prove that there is legally enforceable debt of Rs.2,50,000/-
due to him by the accused. He further states that in Ex.P4, the
complainant himself admitted that the accused had already
repaid Rs.2,50,000/- both by way of cash and cheque. In such
circumstances, there is no occasion arises to issue cheque by
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the accused to the complainant. Accordingly, learned counsel
for the revision petitioner/accused prays to allow the revision
petition by setting aside the judgments and orders passed by
the trial Court so also the First Appellate Court.
10. Refuting the above submissions made by the
learned counsel for the revision petitioner/accused, learned
counsel for the respondent/complainant would submit that the
trial Court, after meticulously examining the evidence and the
documents, has rightly convicted the accused for the offence
punishable under Section 138 of the NI Act, which was
confirmed by the First Appellate Court. Hence, the well
reasoned judgments do not call for any interference by this
Court. Learned counsel would further, by enunciating his
arguments, contend that on perusal of the sale agreement i.e.,
Ex.P8, the same depicts that the accused has received
Rs.1,00,000/- by way of cash so also Rs.1,50,000/- by way of
cheque, thus totaling to Rs.2,50,000/-. To that effect, there is
an endorsement in the agreement itself. Further, learned
counsel also relied on Ex.P9 i.e., Bank statement of the
complainant and submits that in the said statement, the
transaction dated 22.03.2007 clearly reflects about debiting of
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Rs.1,50,000/- from the account of the complainant to the
account of the accused. He would also contend that the
accused-DW.1 has categorically admitted in his cross-
examination that he had received Rs.1,00,000/- by way of cash
from the complainant. Hence, it could be easily concluded that
the accused has received Rs.2,50,000/- from the complainant
as advance sale consideration and since the sale transaction
was not materialized, for the repayment of the said amount of
Rs.2,50,000/-, the accused had issued a cheque i.e., Ex.P1 for
Rs.2,50,000/-. Therefore, the evidence and the documents
placed by the complainant clearly proved his case. As such,
both the Courts below have rightly convicted the accused for
the offence punishable under Section 138 of NI Act.
Accordingly, he prays to dismiss the revision petition.
11. Having heard the learned counsel for both the
parties so also having given my anxious consideration on the
documents made available before me including the judgments
passed by the trial Court as well as the First Appellate Court,
the only point that would arise for my consideration is:
"Whether the judgments passed by the trial
Court so also the First Appellate Court require
interference by this Court?"
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12. On careful perusal of the evidence available on
record, it could be seen that the complainant and the accused
were entered into sale agreement dated 05.01.2007 for
purchase of a property by the complainant from the accused. It
is also not in dispute that in the said agreement, it clearly
depicts that the complainant has paid Rs.2,50,000/- to the
accused i.e., Rs.1,50,000/- by way of cheque and
Rs.1,00,000/- by way of cash. Though the accused disputed
Rs.1,00,000/- paid by the complainant by way of cash, but on
careful perusal of Ex.P8-Sale agreement, the same depicts an
endorsement made by both the parties for having paid
Rs.2,50,000/- by the complainant to the accused. Moreover,
the accused categorically admitted in his cross-examination
that he had received Rs.1,00,000/- from the complainant by
way of cash.
13. Learned counsel for the revision petitioner
vehemently contends that the demand notice was not served to
the accused for the reason that the notice was sent to
Bhuvaneshwari Nagar, Bengaluru, whereas the accused was
residing at R.T.Nagar, Bengaluru during that relevant time.
However, on careful perusal of the postal endorsement as per
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Ex.P7, the same depicts that the said post was returned to the
sender with an endorsement 'addressee not claimed'. However,
notice sent through certificate of posting has been served on
the accused. Moreover, the trial Court has rightly observed that
in the proceedings, summons was issued to the accused to the
very same address as shown in the complaint and Ex.P7 i.e.,
postal envelop returned with an endorsement 'duly served'.
Admittedly, the accused has failed to produce any document to
show that at the relevant time, he was residing at R.T.Nagar.
Hence, as per Section 27 of the General Clause Act, there is
presumption regarding service of letter sent through registered
post. Since the accused failed to rebut such presumption, in my
considered view, both the Courts below have rightly
appreciated the said aspect of the matter.
14. As far as the second contention of the learned
counsel for the revision petitioner that the complainant has
admitted in the legal notice i.e., Ex.P4, the accused has repaid
Rs.2,50,000/- to him. Hence, there arises no need to issue
cheque by the accused to the complainant for repayment of
advance amount. However, on careful perusal of the evidence
of DW.1, he has categorically admitted in his cross-examination
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about the execution of sale agreement as per Ex.P8 for
Rs.4,75,000/- and payment of advance sale consideration of
Rs.1,00,000/- by the complainant to him by way of cash. As far
as balance amount of Rs.1,50,000/- is concerned, the Bank
statement of the complainant at Ex.P9 clearly depicts that on
22.03.2007, a sum of Rs.1,50,000/- has been credited to the
account of the accused. As such, it is clear that Rs.2,50,000/-
has been paid by the complainant to the accused. Admittedly,
the accused has not placed any documents or evidence to
substantiate that he has repaid the said amount of
Rs.2,50,000/- received from the complainant.
15. In such circumstances, the trial Court has rightly
held that the advance amount of Rs.2,50,000/- has been
received by the accused from the complainant and due to break
down of the sale transaction between the parties, in order to
repay the amount of Rs.2,50,000/-, the accused has issued
cheque at Ex.P1 to the complainant to discharge the legally
recoverable debt. Though it is settled principle of law by the
Hon'ble Apex Court that the initial burden, which favours the
complainant, can be rebutted with probable defence by the
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accused, but in the case on hand the accused failed to rebut
the presumption by placing reliable documents or evidence.
16. As such, in my considered view, the trial Court so
also the First Appellate Court have elaborately discussed the
facts and circumstances of the case and rightly appreciated the
oral and documentary evidence and thereby passed by the
impugned judgments.
17. Lastly, learned counsel for the revision petitioner
contends that the cheque amount is of Rs.2,50,000/- and the
trial Court has imposed an exorbitant fine of Rs.5,00,000/-,
which is double the cheque amount. As such, he seeks
indulgence of this Court to interfere with the fine amount
imposed by the trial Court and prays to reduce the same.
18. Having considered the facts and circumstances of
the case so also considering the aspect that the cheque amount
is of Rs.2,50,000/-, I deem it appropriate to modify the fine
amount imposed by the trial Court which was upheld by the
First Appellate Court by directing the accused to pay
Rs.4,00,000/- instead of Rs.5,00,000/- and in default of
payment of the said fine amount, he shall undergo simple
imprisonment for a period of six months instead of one year.
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Accordingly, I answer the point raised above in the partly
affirmative and proceed to pass the following:
ORDER
i) The criminal revision petition is partly allowed.
ii) The fine amount of Rs.5,00,000/- imposed by the
trial Court, which was upheld by the First
Appellate Court, is reduced to Rs.4,00,000/-.
iii) The accused is sentenced to pay a fine of
Rs.4,00,000/- including the fine amount, if any
already deposited and in default of payment of
fine amount, he shall undergo simple
imprisonment for a period of six months.
iv) The accused shall pay the entire fine amount of
Rs.4,00,000/- to the complainant within a period
of six weeks from the date of receipt of certified
copy of this order, failing which, the trial Court is
directed to secure the presence of the accused to
undergo default sentence.
Registry is directed to send the copy of this order to the
trial Court along with LCR forthwith.
Sd/-
JUDGE
VM
