Karnataka High Court
Mr Kiran vs Mrs Vishalakshi S Hegade on 21 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 1123 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 1123 OF 2022
BETWEEN:
1. MR. KIRAN
FRUIT SELLER
R/AT NEAR BUS STAND
"K.K. STORES", FRUIT SELLER
HEBRI VILLAGE,
KARKALA TALUK,
UDUPI DISTRICT.
ACTUAL ADDRESS:
MR. KIRAN
AGED ABOUT 32 YEARS
S/O LATE LAXMAN NAYAK
PERMANENT RESIDENT OF GHANDI NAGAR,
CHARA VILLAGE AND POST-576212,
HEBRI TALUK (PREVIOUSLY KARKALA TALUK),
Digitally signed
by DEVIKA M UDUPI DISTRICT.
Location: HIGH ...PETITIONER
COURT OF
KARNATAKA (BY SRI. CHANDRANATH ARIGA K., ADVOCATE)
AND:
1. MRS. VISHALAKSHI S. HEGADE
AGED ABOUT 62 YEARS,
W/O SRI. SHASHIDAR HEGDE
R/AT MADANAKKI
KUNDAPURA TALUK
UDUPI DISTRICT-576212.
...RESPONDENT
(RESPONDENT IS SERVED AND UNREPRESENTED)
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CRL.RP No. 1123 of 2022
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT IN
C.C.NO.782/2015 DATED 02.05.2019 PASSED BY THE II
ADDITIONAL CIVIL JUDGE AND JMFC KARKALA AND THE
JUDGMENT AND ORDER IN CRL.A.NO.106/2019 DATED
29.12.2021 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, UDUPI.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL ORDER
Heard learned counsel for the petitioner and respondent
is served and unrepresented, inspite of service of notice.
2. This revision petition is filed challenging the order of
conviction and sentence passed in C.C.No.782/2015 for the
offence punishable under Section 138 of N.I. Act and also
confirmation order passed by the First Appellate Court in
Crl.A.No.106/2019.
3. The factual matrix of the case of the complainant
before the Trial Court is that complainant and the accused are
well known to each other. Considering the said acquaintance,
the accused approached the complainant for financial
assistance and borrowed a sum of Rs.2,00,000/- as hand loan
for his business purpose. The accused in repayment of the
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borrowed amount, issued a Cheque dated 04.05.2015 and
though he had promised to honour the Cheque, when the same
was presented, it was dishonoured with an endorsement 'funds
insufficient'. Immediately, she had sent legal notice and legal
notice returned with an endorsement 'left without instruction-
returned to sender'. Thereafter, the complainant filed the
complaint and the Trial Court taken cognizance and secured the
accused and on securing the accused, he did not plead guilty.
4. The complainant examined herself as P.W.1 and got
marked the documents as Exs.P1 to P25. On the other hand,
the accused did not choose to lead any defence evidence, but
he was examined under Section 313 Cr.P.C. The Trial Court
having considered the material on record, particularly the
evidence of P.W.1, since P.W.1 was cross-examined with regard
to the fact that address is not correct, nothing is elicited from
the mouth of P.W.1. The Trial Court also taken note of Ex.P5-
returned postal envelope, wherein endorsement is made that
'left without instruction, returned to sender'. The Trial Court
also in paragraph No.15, taken note of factual aspects and also
answer elicited from the mouth of P.W.1 and also comes to the
conclusion in paragraph No.16 that in 313 statement, accused
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has not stated anything about his correct address and at the
time of issuance of demand notice, where he actually resides.
Hence, the Trial Court comes to the conclusion that though the
accused took time to lead defence evidence, inspite of sufficient
opportunity, he did not choose to adduce oral or documentary
evidence to rebut the evidence of P.W.1-complainant. The Trial
Court also taken note of the fact that very endorsement goes to
show that the accused was residing in the said address for
some time. In view of Section 27 of the General Clause Act,
1897 and Section 114 of Indian Evidence Act which raises a
presumption that the demand notice has reached the
destination, unless the contrary is proved by the accused. On
perusal of testimony of P.W.1, wherein the learned counsel for
the accused has not made any suggestion where the accused
actually resides and from what date he has been residing and
noting is put to the witness P.W.1.
5. The Trial Court also taken note of the judgment of
the Apex Court in INDO AUTOMOBILES VS. JAI DURGA
ENTERPRISES AND OTHERS reported in (2008) 8 SCC 529,
wherein the Apex Court has observed that once notice has been
sent by registered post with acknowledgement due to a correct
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address, it must be presumed that the service has been made
effective and also considering the principles laid down in the
judgment of the Apex Court, the Trial Court comes to the
conclusion that accused has not properly explained that at the
time of issuance of demand notice where he actually resides at
Bangalore. It is settled law that the presumptions are rebuttal
in nature and it is for the accused to rebut the presumption by
placing direct or circumstantial evidence. But, he has not done
the same. The Trial Court considering the principles laid down
in the judgment of the Apex Court and evidence on record i.e.,
P.W.1, taken note of the fact that nothing is suggested to him
that he was residing at the place where he was at the time of
issuance of notice or he was residing in some other place.
Hence, the Trial Court comes to the conclusion that notice was
sent to the correct address considering the General Clause Act,
1897 and convicted the accused. The same is confirmed by the
First Appellate Court on re-appreciation of both oral and
documentary evidence placed on record.
6. The First Appellate Court in paragraph No.21 taken
note of the fact that in the complaint, address of the accused is
noted as residing near Bus Stand, K.K. Store, Fruit Seller, Hebri
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Village, Karkala Taluk. In the legal notice and postal cover
marked at Exs.P3 and P5, address of the accused is noted as
Fruit Setter, residing near Bus Stand, Hebri Village, Karkala
Taluk. The First Appellate Court taken note of the fact that loan
was availed for the purpose of his business and also taken note
of the endorsement made by the postal authority in paragraph
No.32 and having taken note of said fact into consideration, the
First Appellate Court comes to the conclusion that there is no
explanation on the part of the accused. The First Appellate
Court also in paragraph No.34 also observed that in the file
either passbook pertaining to the Cheque marked at Ex.P1
which is containing the address of the accused/account holder
is not available. There is no explanation on behalf of the
accused the reason for non-production of either passbook
pertaining to Cheque marked at Ex.P1 or any other documents
maintained by the bank containing his address which are better
evidence to show his address account holder in addition to
Xerox copy of Aadhaar card, election ID. Having considered the
same, the First Appellate Court comes to the conclusion that
the Trial Court by properly appreciating the evidence,
particularly considering the documents of Exs.P3 and P5 and
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also considering the presumption, confirmed the order of the
Trial Court holding that proper service was made.
7. The main contention of the counsel for the
petitioner before this Court that there is no proper service of
legal notice and the same is not in compliance with Section 138
of NI Act. Unless, the notice has been served, the question of
invoking Section 138 of NI Act does not arise and there cannot
be any presumption in respect of service of legal notice is
concerned. Hence, it requires interference of this Court.
8. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material on
record, the points that would arise for consideration of this
Court are:
1. Whether the Trial Court committed an error in
coming to the conclusion that service of notice was
proper invoking of Section 27 of General Clause Act,
1897 and Section 114 of Indian Evidence Act which
raises a presumption that demand notice has
reached the destination, unless the contrary is
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proved by the accused and the said order suffers
from its legality and correctness?
2. What order?
Point No.1:
9. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material on record
it discloses that the petitioner has not disputes the fact of
issuance of cheque which is marked at Ex.P1 and also not led
any defence evidence before the Trial Court even though PW1
was cross-examined and when opportunity was given, the
same was not utilised by the petitioner. The only contention of
the petitioner that there cannot be any presumption and the
said contention cannot be accepted. The Trial Court also
referring the judgment of the Apex Court in the case INDO
AUTOMOBILES referred supra, held that once notice has been
sent by registered post with acknowledgment due to a correct
address, it must be presumed that service has been made
effective. The very contention of the petitioner that the same
cannot be presumed cannot be accepted. The Apex Court also
in the judgment referred supra, it is held that if the notice is
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sent to the correct address, it must be presumed that service
has been made effective. In the cross-examination of PW1, she
did not deny that address. It is a fact that the prosecution is
doing the business in the very same address which is
mentioned in Ex.P3 and P5 and notice has been served on him
on the very same address. It is not his case that he was not
residing in the said address at the time of issuance of notice
and nothing is suggested with regard to the address where he
is residing at the time of issuance of notice. The Trial Court also
taken note of the statement recorded under Section 313 of
Cr.P.C wherein also the petitioner has not explained any
incriminating circumstances in his 313 statement and also not
led any defence evidence. The Trial Court also taken note of
the fact that when notice was sent, the same was returned with
an endorsement 'addressee left without instruction, returned to
sender'. The meaning of the said endorsement is not that he
was not residing in the said address that means he left without
instructions and hence, the notice was returned to the sender
and hence, the Trial Court invoked Section 27 of the General
Clause Act, 1897 and Section 114 of Indian Evidence Act which
raises a presumption that demand notice has reached the
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destination, unless the contrary is proved by the accused. In
the case on hand, contrary has not been proved by the
petitioner stating that he was not residing in the address which
contains in Ex.P3 and P5. When such material are considered
by the Trial Court and reasoned order has been passed relying
upon the judgment of the Apex Court referred supra, the very
contention of the counsel for the petitioner that notice has not
been served cannot be accepted. The very contention of the
petitioner that in the absence of service of notice, cannot
invoke Section 138 of NI Act cannot be accepted. The Trial
Court passed the reasoned order and even the First Appellate
Court also in detail re-appreciated the material on record and
thereafter comes to the conclusion that even accused also not
placed any material before the Trial Court to prove that the
address mentioned at Ex.P5 was not his address. But the fact
that loan also availed for the fruit business and address given
in Ex.P5 as well as in the notice sent to him in terms of Ex.P3
are in respect of his business address and the purpose of
availing loan is also for business purpose. When such material
available on record, I do not find any force in the contention of
the petitioner's counsel to comes to a other conclusion that
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order of both the Courts suffer from its legality and correctness.
Thus, there is no merit in the revision petition. Accordingly, the
above point is answered as negative.
Point No.2:
10. In view of discussions made above, I pass the
following:
ORDER
The revision petition is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST/SN
