IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL REVISION PETITION No.260 of 2011 BETWEEN C. RUDRESH, S/O. CHANNAVEERAPPA, AGED ABOUT 49 YEARS, RESIDENT OF D.No.65, NEAR ANJANEYA TEMPLE, AVARAGERE VILLAGE, DAVANAGERE TALUK.
…PETITIONER (BY SRI JAGADEESHGOUD PATIL, ADVOCATE-absent) AND SRI SATHISCHANDRA K.S., S/O. K.V. SUBBA RAO, AGED ABOUT 51 YEARS, RESIDENT OF D.No.868/1, SRI GOKUL RESTAURANT, DAVANAGERE.
…RESPONDENT (BY SRI BASAVARAJ N PATIL, ADVOCATE FOR SRI B.M. SIDDAPPA, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 28.09.2010 PASSED BY THE PRINCIPAL CIVIL JUDGE (SR.DN.) & CHIEF JUDICIAL MAGISTRATE, DAVANAGERE IN C.C.No.2764/2009 AND ORDER DATED 09.12.2010 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE AT DAVANAGERE IN CRL.A.No.143/2010.
THIS CRIMINAL REVISION PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Learned counsel for the petitioner has remained absent continuously in spite of the order passed by this Court on the last occasion that the Court would be constrained to vacate the interim order, if the counsel for the petitioner fails to appear and argue the case. Even today, learned counsel for the petitioner has remained absent when the matter was taken up for hearing at 3.25 p.m. This Court being the revisional court is constrained to dispose off the matter on merits. Hence, proceeded to hear the arguments of learned counsel for the respondent.
2. This revision petition is filed by the petitioner being aggrieved by the judgment of conviction and sentence passed by the Principal Civil Judge (Sr.Dn.) & C.J.M., Davanagere, in CC No.2764/2009 for the offence under Section 138 of Negotiable Instruments Act, 1881 (for short N.I. Act’) and sentenced to pay fine of Rs.1,00,000/-, in default, to undergo simple imprisonment for one year and was also ordered to pay Rs.91,500/- as compensation under Section 357 of Cr.P.C., vide judgment dated 28.09.2010. Being aggrieved by the judgment of conviction and sentence, the petitioner filed an appeal before the District and Sessions Court in Crl.A.No.143/2010. The First Appellate Court, after hearing both parties, dismissed the appeal vide judgment dated 09.12.2010 by confirming the judgment of conviction and sentence passed by the Trial Court. Hence, the petitioner is before this Court.
3. The ranks of the parties before the Trial Court is retained for the sake of brevity.
4. The factual matrix of the case of the complainant- respondent before the Trial Court is that the accused is a known person to the complainant. The accused had approached the complainant for a financial help of Rs.91,500/-. Accordingly, the complainant lent hand-loan of Rs.91,500/- to the accused and the accused has agreed to pay the said loan within a short time. But, he did not pay the same and in order to discharge the loan, the accused issued a cheque for Rs.91,500/- bearing No.700090, dated 20.08.2005, drawn on Indian Overseas Bank, Davanagere. The complainant presented the cheque on 16.11.2005 through the Urban Co-operative Bank, Davanagere, but the cheque was dishonoured with an endorsement that the account was closed. Therefore, the complainant got issued the legal notice under the N.I.Act. The notice sent through the ‘Certificate of Posting’ was served. However, the RPAD was returned as unserved. The accused failed to give reply and also not paid the said amount. Hence, the complainant filed a private complaint under Section 200 Cr.P.C. before the Trial Court for the offence under Section 138 of N.I.Act. The accused appeared before the Trial Court, pleaded not guilty and hence, the complainant examined himself as PW.1 and got marked 8 documents. After competition of the evidence of the complainant, the statement of the accused under Section 313 of Cr.P.C. has been recorded. The case of the accused was one of total denial. However, in the cross-
examination he has taken the defence that a blank cheque was issued as security towards chit fund business and he has not borrowed any loan and he has to pay only two or three installments of Rs.2,000/- to Rs.3,000/- per month. The same was stated in his evidence, but no documents were produced and he has not examined any witness. After hearing the arguments, the Trial Court found the accused guilty and convicted and sentenced the accused to pay fine of Rs.1,00,000/- vide judgment dated 28.09.2010. Subsequently, the appeal also came to be dismissed by the Appellate Court.
5. This case is pending consideration since 2011 and it is one of the oldest cases. Learned counsel for the petitioner has continuously remained absent and there is no representation on his behalf in spite of granting sufficient opportunity. Hence, heard the arguments of learned counsel for the respondent.
6. Learned counsel for the respondent contended that the Trial Court as well as the First Appellate Court rightly convicted the petitioner/accused. He has borrowed Rs.91,500/- as hand loan. In order to discharge the loan, he has issued a cheque, but behind his back, the accused has closed his account. When the cheque was presented, it was dishonoured and returned with a shara that the ‘account is closed’. Thereby, the complaint is filed by the complainant before the Trial Court. In the cross- examination, the petitioner accepted issuance of cheque and it is sufficient to hold him guilty though he has turned back deposing that it was a blank cheque issued for security purpose towards chit fund transaction, but he has not examined any other witness or produced any document. Therefore, the presumption in favour of the complainant is available under Section 118 of the N.I.Act and the accused is required to discharge the legally liable debt to the complainant. Therefore, it is contended that there is no illegality or infirmity in the order passed by the Trial Court as well as the First Appellate Court which requires interference by this Court. Hence, he prayed for dismissal of the petition.
7. It is well settled by the Hon’ble Apex Court as well as this Court that this Court cannot interfere with the concurrent findings of both the court below except under the circumstance where a grave injustice is caused to the accused. Keeping in mind the said principle and on perusal of the records and the evidence of the parties before the Court, the accused has admitted issuance of cheque and his signature in his evidence. Though the accused has stated that he is not liable to pay Rs.91,500/-, but he has to pay only 2 to 3 installments of Rs.2,000/- to Rs.3,000/- per month and he has taken the chit amount at the time of becoming member of the chit fund and he has given the cheque as security and the complainant used to take money whenever the accused worked for the complainant in respect of electric work, but in order to prove his contention, except his oral testimony, he has not produced any single document or passbook before the Court to show that this cheque was in fact issued by him only in the year 2003 and it was misused by the complainant by presenting the same in the Bank in the year 2005. If at all the cheque was issued long back in the year 2003, the accused could have replied the legal notice issued by the complainant.
In the cross-examination of DW.1, the accused himself has admitted that he has received a show cause notice issued by the complainant and he further admits that he has not given any reply though he has stated that he was not in station, but he failed to produce any document to show that he has produced any document to show there were reasonable and sufficient cause for which he is prevented from giving any reply to the legal notice. The accused has also not examined any other witness than himself to show that the complainant was running a chit fund business and he has paid the subscriptions regularly and took the chit. On the other hand, the evidence of the complainant is filed by way of affidavit and marked the documents Ex.P.1-cheque in question, Exs.P.2 and P.3- endorsement of the Bank, Ex.P.4-copy of the legal notice, Ex.P.5- Postal acknowledgement for having served the notice through ‘Certificate of Postings’, Ex.P.6-postal receipt, Ex.P.7-unserved RPAD and Ex.P.8- Original notice. During the cross-examination, except some suggestions made by the accused, nothing has been elicited to disbelieve the evidence of PW.1 in respect of advancing loan to the accused and the accused giving the cheque for discharging the loan. When the accused admitted the signature and issuance of the cheque, presumption is available in favour of the complainant under the 118 of N.I.Act. The same was not rebutted by the accused by leading cogent and convincing evidence either oral or documentary. Therefore, based upon the evidence and the documents on record, the Trial Court has rightly convicted the accused that he has committed offence under Section 138 of N.I.Act and imposed fine of Rs.1,00,000/- including the incidental charges. The First Appellate Court also re- appreciated the evidence on record and confirmed the judgment.
8. This Court do not find any error or illegality committed by both the Court below while recording concurrent findings in favour of the complainant warranting interference by this Court under revisional jurisdiction. Therefore, I hold that the petition is devoid of merit and is liable to be dismissed. Accordingly, the revision petition is dismissed.
SD/- JUDGE mv