Karnataka High Court
Mr. Maxwell Prince Montheiro vs Mr. Deveshchandra Tiwari on 17 March, 2025
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NC: 2025:KHC:11521
CRL.RP No. 1148 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO. 1148 OF 2017
BETWEEN:
MR. MAXWELL PRINCE MONTHEIRO
S/O OSWALD,
AGED ABOUT 34 YEARS,
R/AT H.NO.1-N-6-460,
MAHIMA SHAD ROAD,
ASHOK NAGAR, MANGALORE.
D.K-575 006.
...PETITIONER
(BY SRI. KETHAN KUMAR, ADVOCATE)
AND:
MR. DEVESHCHANDRA TIWARI
Digitally S/O VINOD CHANDRA TIWARI,
signed by AGED ABOUT 32 YEARS,
REKHA R R/AT F.NO.71, MRPL TOWNSHIP,
Location: KUTHETHOOR, VIA KATIPALLA
High Court
of Karnataka MANGALORE-560 001.
...RESPONDENT
(BY SRI.VINOD PRASAD, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE
JUDGMENT DATED 20.09.2017 IN CRL.A.NO.198/2015 PASSED
BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
DAKSHINA KANNADA, MANGALORE CONFIRMING THE
JUDGMENT OF THE JUDICIAL MAGISTRATE FIRST CLASS-V
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CRL.RP No. 1148 of 2017
COURT, MANGALORE, DATED: 09.06.2015 IN
C.C.NO.266/2013.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MS JUSTICE J.M.KHAZI
ORAL ORDER
This petition filed under Section 397 r/w 401 Cr.P.C
is by the accused, wherein he has challenged his
conviction and sentence for the offence punishable under
Section 138 of N.I Act, imposed by the trial Court, which
came to be confirmed by the Session Court, by dismissing
the appeal filed by him.
2. For the sake of convenience, parties are
referred to by their ranks before they trial Court.
3. It is the case of the complainant that during the
month of January 2011, accused borrowed hand loan of ₹4
lakhs for his urgent commitments, promising to repay the
same within two months. When he failed to fulfill his
promise, on repeated request and demand, on
22.11.2012, accused issued cheque dated 22.11.2012 for
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₹4 lakhs. However, when presented the cheque for
encashment, it was dishonoured with endorsement, 'there
is instructions to stop payment by the drawer'.
Complainant got issued legal notice and it is duly served
on the accused. However, he has neither paid the amount
due nor sent any reply to the legal notice.
4. Accused contested the case by pleading not
guilty.
5. In order to prove his case, complainant
examined himself as PW-1 and relied upon Ex.P1 to 4.
6. During the cross-examination of PW-1 and
during the course of his statement under Section 313
Cr.P.C, the accused has taken up a defence that
complainant has invested ₹4 lakhs in M/s Nano Forex
Institution and it was not in loan given to him.
7. Accused has not led any defence evidence.
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8. The trial Court accepted the case of the
complainant and convicted the accused and sentenced him
to pay of ₹4,10,000/- with default sentence.
9. Accused challenged the same before the
Sessions Court in Crl.A.No.198/2015, which came to be
dismissed by upholding the judgment and order of the trial
Court.
10. Aggrieved by the same, the accused is before
this Court, contending that the judgment and order of the
trial Court and Sessions Court are perverse, erroneous and
not sustainable in law. Complainant has not established
the transaction and his financial capacity to lend ₹4 lakhs.
Both Courts have failed to appreciate that ₹4 lakhs is
invested by the complainant in M/S Nano Forex and in this
regard litigation was pending since 2010. Both Courts have
failed to appreciate the fact that legal notice is not served
on the accused. Complainant has failed to prove his case
beyond reasonable doubt and pray to set aside the
impugned judgments and orders and acquit the accused.
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11. On the other hand learned counsel representing
the complainant supported the judgments and orders
passed by the trial Court as well as the Session Court and
sought for dismissal of this petition.
12. Heard arguments and perused the record.
13. The fact that the cheque in question belong to
the accused, drawn on his account maintained with his
banker and it bears his signature is not in dispute.
Therefore, presumption under Section 139 of N.I Act
comes into picture to the effect that the cheque was issued
towards repayment of any legally recoverable debt or
liability, placing the initial burden on the accused to rebut
the same. According to the complainant, the legal notice is
served on the accused, as per acknowledgement at Ex.P4.
Admittedly, accused has not sent any reply to the legal
notice. Even though during the cross-examination of PW-1,
a suggestion is made that notice is not served on the
accused, he has not disputed his address to which the
notice is sent. The acknowledgement at Ex.P4 reveal
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that it is received by one Jacinta, who appears to be the
relative of accused, since it is his residential address.
Accused has not clarified this aspect.
14. Under Section 27 of the General Clauses Act
when any Central Act or Regulation made after the
commencement of the General Clauses Act, authorizes or
requires any document to be served by post, whether the
expression service or either of the expressions give or
send, or any other expression is used, then, unless a
different intention appears, the service shall be deemed to
be effected by properly addressing, pre-paying and posting
by registered post, a letter containing the document, and,
unless the contrary is proved, to have been effected at the
time at which the letter would be delivered in the ordinary
course of the post.
15. Thus, despite due service of notice, the accused
has not chosen to send reply. Even though sending reply
to the legal notice is not mandatory, it would give
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opportunity to the accused to come up with his defence at
the earliest available opportunity.
16. Accused has not led any defence evidence.
However, during the cross-examination of PW-1, he has
taken a defence that ₹4 lakhs paid by complainant was an
investment in M/s Nano Forex. He has made a suggestion
that one Movin is a common friend of complainant and
accused and that he was doing business in shares.
Complainant has denied that he has invested ₹4 lakhs
through the said Movin. If at all ₹4 lakhs paid by
complainant was an investment, the accused is not having
an explanation as to why he would issue a cheque to the
complainant, for the alleged investment made by
complainant with Movin, a common friend.
17. Through the cross-examination of PW-1,
accused has challenged the financial capacity of
complainant. The evidence of PW-1 establish the fact that
at the relevant point of time, he was drawing basic of
₹34,000 plus (+) 100% of it as dearness allowance + 50%
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of it towards other allowances. He was also given
residential accommodation for which certain sum was
deducted as rent. He has also deposed that out of ₹4 lakhs
he had withdrawn ₹3,90,000/- from his account and
remaining ₹10,000/- were available with him.
18. It is pertinent to note that the accused has not
disputed the evidence of complainant with regard to his
financial capacity. In fact, a suggestion is made to the
complainant that accused has issued the cheque to him at
the same time when he paid money to him. Even though
the complainant has not produced his salary certificate or
account extract to show that he has withdrawn
₹3,90,000/- from his account, in the light of the specific
defence taken by the accused, he is admitting the fact that
₹4 lakhs was paid by the complainant. The very suggestion
that complainant has invested ₹4 lakhs in shares goes to
show that accused admit his financial capacity.
19. Of course, accused has not examined the said
Movin to prove that ₹4 lakhs paid by complainant was an
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investment in shares. On perusal of oral and documentary
evidence placed on record and in the light of cross
examination of PW-1, this Court is not having any
hesitation to hold that, accused has taken a false defence
for the sake of defence and he has failed to establish the
same.
20. Taking into consideration the oral and
documentary evidence on record the trial Court as well as
the Sessions Court have come to a right conclusion that
the accused has failed to rebut the presumption and on the
other hand, complainant has established the allegations
against the accused and held him guilty of offence under
Section 138 of N.I Act. The findings and conclusions
arrived at by both Courts is consistent with the evidence
on record and this Court finds no perversity calling for
interference. In the result, the petition fails and
accordingly the following:
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ORDER
(i) Petition filed by the accused under Section
397 r/w 401 Cr.P.C is hereby rejected.
(ii) The impugned judgment and order dated
09.06.2015 in C.C.No.266/2013 on the file
of JMFC-V Court, D.K, Mangaluru and
judgment and order dated 20.09.2017 in
Crl.A.No.198/2015 on the file of I
Addl.District and Sessions Judge, D.K,
Mangaluru are hereby confirmed.
(iii) The Registry is directed to send back the
trial Court as well as Sessions Court
records along with copy of this order
forthwith.
Sd/-
(J.M.KHAZI)
JUDGE
RR
