IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.794/2015 Between:
Jagadish S/o Chikka Lingaiah Aged about 34 years R/at Haridasanahalli Village Neeragunda Post, Turuvekere Taluk Tumkur District-572221. ...Petitioner (By Sri K.A. Chandrashekara, Advocate) And:
N.M. Sadananda S/o Mahalingaiah Aged about 44 years R/at Haridasanahalli Village Neeragunda Post, Kasaba Hobli Turuvekere Taluk Tumkur District-572221. ... Respondent (By Sri M.N. Madhusudhan, Advocate) This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C., praying to set aside the order of conviction and sentence dated 29.07.2013 passed by the C.J. and J.M.F.C., Turuvekere in C.C.No.134/2010 and modified by the judgment and order dated 30.01.2015 passed by the V Additional District and Sessions Judge, Tiptur in Crl.A.No.10008/2013 for the offence punishable under Section 138 of N.I.Act and to acquit the petitioner/accused and etc., This Criminal Revision Petition coming on for Admission this day, the Court made the following:
ORDER The present petition has been preferred by the petitioner/accused being aggrieved by the judgment passed by the V Additional District and Sessions Judge, Tiptur in Criminal Appeal No.10008/2013 dated 30.01.2015, whereunder the judgment of the learned Civil Judge and JMFC, Turuvekere in C.C.No.134/2010 dated 29.07.2013 was modified by allowing the appeal partly and sentence to undergo simple imprisonment for a period of six months is relaxed subject to the condition of paying fine of Rs.10,000/- and in default of payment of fine, he shall undergo simple imprisonment for a period of six months for the offence punishable under Section 138 of N.T. Act and the accused was directed to pay a sum of Rs.75,000/- to the complainant as compensation.
2. The case of the complainant in brief before the Court below is that the accused borrowed a sum of Rs.1,50,000/- from the complainant for his financial requirement and agreed to repay the same. When the complainant insisted to repay the said loan, he issued a cheque bearing No.429471 dated 21.07.2009 drawn on Karnataka Bank, Turuvekere for a sum of Rs.1,50,000/-. The complainant presented the said cheque for encashment. The said cheque was returned with an endorsement as “Funds Insufficient” on 24.08.2009. The complainant got issued legal notice on 26.08.2009 and the said notice though served, he failed to repay the loan amount and as such, a private complaint has been filed. Thereafter, the cognizance was taken, accused was secured and his plea was recorded. He pleaded not guilty and claims to be tried. Hence, the trial was fixed.
3. The complainant got himself examined as PW.1 and other two witnesses as PW.2 and PW.3 and got marked Exs.P1 to P9. Thereafter, the statement of the accused was recorded by putting incriminating material as against him.
4. The accused got himself examined as DW.1 and he also got examined one more witness as DW.2. Thereafter, after hearing the arguments the trial Court convicted the accused. It is the contention of the learned counsel for the appellant that though it is the specific case of the petitioner/appellant that no legal notice has been served in accordance with law, without considering the said fact, the First Appellate Court has modified the judgment of the trial Court and directed the accused to pay the compensation.
5. He further submitted that though the complainant has not established the very transaction between himself and the accused, the Court has passed the impugned order. He further submitted that there was no legally recoverable debt or liability and under the said circumstances, the Court below ought to have dismissed the petition. On these grounds, he prayed to allow the petition and set aside the impugned order.
6. Per contra, the learned counsel for the respondent/complainant vehemently argued and submitted that though the accused has denied the issuance of the cheque and the debt, the evidence of PW.2 and PW.3 clearly goes to show that the cheque has been issued and they were acquainted with each other and that the accused has admitted the signature on the cheque, the presumption has to be drawn under Section 139 of the N.I. Act. Keeping in view of the above facts and circumstances and even during the course of cross-examination, Prasanna Kumar-DW.2 has deposed that the notice has been served to the accused. Under such circumstances, the Court below has rightly appreciated the facts and circumstances and rightly convicted the accused. The appellate Court has modified the said order and it is also in accordance with law. On these grounds, he prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
8. It is the specific case of the complainant that the accused borrowed a sum of Rs.1,50,000/- from the complainant for his financial assistance and in discharge of the same, he has issued a cheque Ex.P7 and when the said cheque has been presented it was dishonored with the shara “Funds Insufficient” and thereafter, a legal notice has been issued on 26.08.2009. Though it is the specific contention of the petitioner/accused that he has not received the said notice issued as per Section 138 of the N.I. Act, but the cause title of the case shows the name of the accused and his residential address and the same address is also mentioned in Ex.P6 the legal notice and RPAD cover. When once a notice has been sent to the address mentioned to the accused, then under such circumstances, there is a legal presumption that the said letter has been delivered to the addressee. Even, DW.2 who came to be examined before the Court has deposed that the said notice has been served upon the accused. Taking into consideration, the above said facts and circumstances and the contention of the learned counsel for the petitioner that no notice has been served is not having any force and same is liable to be rejected.
9. The second contention of the learned counsel for the petitioner is that there was no legally recoverable debt, but as could be seen from Ex.P.7-the cheque, in nowhere the said signature has been denied by the petitioner/accused and it is also presumed under Section 118 of the N.I. Act that if the cheque issued pertains to the amounts of the accused and if he has not given any proper explanation, then under such circumstances as per Section 139 of the N.I. Act it should be presumed that there exists a legally recoverable debt and in discharge of the said debt, he has issued the cheque. The burden lies upon the accused to rebut the said presumption on preponderance of probabilities, but as could be seen from the evidence of DW.1, he has taken up two contentions. He has not acquainted with the complainant and subsequently he has taken the contention that there was no debt or liability. But for what reason he has issued cheque Ex.P7 is not forthcoming. Under such circumstances, I fell that the contention taken up by the learned counsel for the petitioner/accused is not tenable in law.
10. I have carefully and cautiously gone through the judgment of the appellate Court as well as the trial Court. They have elaborately discussed the matter and thereafter, come to the right conclusion that there are no good grounds to interfere with the judgment of First Appellate Court. Even it is made clear that though the First Appellate Court allowed the appeal partly by relaxing the condition of imprisonment for six months, but no appeal has been preferred by the complainant being aggrieved by the same. Under such circumstances, I feel that if the judgment of the First Appellate Court is confirmed by dismissing the present revision petition, it is going to meet the ends of justice.
11. In light of the discussion held by above the petitioner has not made out any grounds to interfere to consider the case on merits and same is liable to be dismissed.
Accordingly, the criminal revision petition is dismissed.
ssb Sd/-
JUDGE