Karnataka High Court
Sri. R Sudhakar vs Anandteerth V Joshi on 7 May, 2024
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CRL.RP No. 859 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 859 OF 2017
BETWEEN:
SRI. R. SUDHAKAR
S/O LATE RAJACHAR
R/AT # 402, 4TH FLOOR
HEMADRI RESIDENCY
OPP. SUGUNA HOSPITAL
DR. RAJKUMAR ROAD
RAJAJINAGARA
BENGALURU - 560 010.
...PETITIONER
(BY SRI. RAGHAVENDRA S, ADVOCATE)
AND:
ANANDTEERTH V. JOSHI
S/O VENKATARAO JOSHI
AGED ABOUT 37 YEARS
R/AT #V19, SNEHA, I FLOOR
II MAIN, 7TH CROSS
AMARJYOTHI NAGAR
VIJAYANAGARA
BENGALURU - 40.
...RESPONDENT
(BY SRI. A VIJAY KUMAR BHAT, ADVOCATE)
THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND
SENTENCE AND FINE IMPOSED BY THE XXII ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE, BENGALURU, VIDE
JUDGMENT DATED 22-08-2016 PASSED IN C.C.NO.28235/2014
AND ETC.,
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 20.02.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
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CRL.RP No. 859 of 2017
ORDER
1. This Criminal Revision Petition is filed by the
petitioner / accused, being aggrieved by the judgment of
conviction and order of sentence dated 22.08.2016 in
C.C.No.28235/2014 on the file of XXII Additional Chief
Metropolitan Magistrate, Bangalore City and its confirmation
judgment and order dated 19.07.2017 in Crl.A.No.1071/2016
on the file of the LXVII Additional City Civil and Sessions Judge,
Bengaluru City (CCH.No.68), seeking to set aside the
concurrent findings recorded by the Courts below, wherein the
petitioner / accused is convicted for the offence under Section
138 of Negotiable Instruments Act (for short 'N.I. Act').
2. The rank of the parties in the Trial Court will be
considered henceforth for convenience.
Briefs facts of the case:-
3. It is the case of the complainant that he had
entered into an agreement of sale with the accused on
27.05.2013 and paid Rs.7,00,000/- as part payment and the
remaining balance had to be paid at the time of execution of the
sale deed. The total amount of Rs.35,00,000/- was fixed as
sale consideration. Time was stipulated to complete the
construction process, however, the accused did not perform his
part of contract and therefore, the complainant demanded the
accused to repay the amount by canceling the sale agreement.
The accused after agreeing for cancellation of the sale
agreement, issued a cheque for the said amount and asked the
complainant to present the cheque for encashment.
4. When it was presented for encashment, the cheque
came to be dishonoured with a shara as 'funds insufficient'.
Thereafter, a legal notice was issued to the accused through
RPAD regarding dishonour of cheque. After having received the
said notice, the accused issued a reply dated 19.09.2014 by
admitting the amount of Rs.7,00,000/- received by him,
however, the accused stated in his reply notice that the amount
would be returned subject to returning of the original sale
agreement. In spite of reply having been received by the
complainant, a complaint came to be registered before the
Jurisdictional Magistrate.
5. To prove the case of the complainant, he himself
examined as PW.1 and got marked 6 documents as Exs.P1 to
P6. On the other hand, the accused did not choose to lead any
evidence. The Trial Court after appreciating the oral and
documentary evidence on record, recorded the conviction of the
accused and the same has been confirmed by the Appellate
Court in the appeal filed by the accused. Hence this revision
petition.
6. Heard Sri. Raghavendra S, learned counsel for
petitioner and Sri. A Vijay Kumar Bhat, learned counsel for the
respondent.
7. It is the submission of learned counsel for the
petitioner that the liability is admitted by the accused, however,
in the reply notice which is marked as Ex.P6, it is stated that the
amount would be returned subject to returning of the original
sale agreement. However, the complainant did not return the
original sale agreement. Hence, the liability would not arise on
the cheque.
8. It is further submitted that even though the
complainant did not approach the accused after having received
the reply notice and returned the original sale agreement, both
the Courts have held wrongly that the accused is liable to pay
the amount stated in the cheque which appears to be erroneous
and not proper. Therefore, the concurrent findings of the Courts
below are required to be set aside. Making such submission,
learned counsel for petitioner prays to allow the petition.
9. Per contra, learned counsel for the respondent
vehemently justified the concurrent findings of conviction and
submitted that the issuance of the cheque, signature found on
the cheque and also the receipt of the amount are all admitted
by the accused, however, the accused insisted the complainant
to return the original sale agreement which may not be proper
and appropriate. Therefore, the revision petition filed by the
petitioner deserves to be dismissed.
10. After having heard the learned counsel for the
respective parties, it is necessary to state the facts in brief along
with evidence of PW.1. The averments of the complaint which
disclose that the accused had agreed to construct the house to
the complainant and entered into an agreement of sale. The
total sale consideration was fixed at Rs.35,00,000/-. The
complainant paid Rs.7,00,000/- as a part payment and the
remaining balance had to be paid at the time of execution of the
sale deed. The accused had agreed to complete the
construction within six months, however, he went on postponing
to another six months. Even though sufficient time was given to
the accused, the complainant was not allowed to visit the site of
construction nor was allowed to inspect the quality of
construction. Being unhappy with the said development, the
complainant decided to call off the transaction.
11. Accordingly, the said transaction was called off and
the accused issued cheque in a sum of Rs.7,00,000/- as a part
of cancellation of sale agreement. When the cheque was
presented for encashment, it came to be dishonoured with a
shara as 'funds insufficient' and it was brought to the knowledge
of the accused by way of issuance of legal notice. The accused
replied to the said notice stating that the original sale
agreement has to be returned and the amount would be paid to
the complainant.
12. It is settled law that, of course, the accused has to
rebut the presumption by leading cogent evidence, however, in
this case, the accused except issuance of reply notice, neither
cross-examined the complainant nor chosen to lead any
evidence. On perusal of the reply notice, it can be inferred that
the accused had admitted the transaction and also admitted that
he had to repay the amount of Rs.7,00,000/- to the
complainant. Further, he admitted that the sale agreement was
executed between himself and the complainant has been
cancelled. According to accused, he was ready to make
payment only on returning the original sale agreement.
However, the complainant did not return the original sale
agreement nor approached the accused for further transactions.
13. On conjoint reading of the reply notice and evidence
of PW.1, inference could be drawn that mere issuance of the
cheque by admitting the liability would not sufficient to fasten
the liability on the accused. In fact, the complainant must have
acted upon the reply notice issued by the accused. In case if
the complainant had approached the accused after having
received the reply notice, probably the matter would have been
settled between themselves.
14. Be that as it may, the accused admitted the
transaction i.e., the execution of the sale agreement and its
cancellation and also issuance of the cheque pursuant to
cancellation of the sale agreement. It is needless to say that
admitted fact need not be proved. In such a way the accused is
held liable to be convicted for the offence under Section 138 of
N.I. Act.
15. After having perused the findings of the Courts
below, I am of the considered opinion that both the Courts have
not committed any error in recording the conviction. Hence, I
decline to interfere with the said findings. Therefore, this
revision petition deserves to be dismissed and ordered
accordingly.
Sd/-
JUDGE
Bss
