IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI CRIMINAL RP NO.325 OF 2017 BETWEEN:
RAJEEVI MARGARET BANGERA W/O ALWIN BANGERA, AGED ABOUT 34 YEARS, R/O. MINI TOER, H.NO. 4473 KINNIMULKI, UDUPI UDUPI TALUK, UDUPI DISTRICT-576 101.
….PETITIONER (BY SRI. SANDESH SHETTY T., ADVOCATE) AND:
SANTHOSH S/O. PADDA POOJARY AGED ABOUT 38 YEARS SRI. MARUTHI NILAYA MOODLKATTE KUNDAPURA TALUK UDUPI DIST-567 216.
….RESPONDENT (BY SRI. SANGAMESH, ADVOCATE FOR SRI. K. CHANDRANATH ARIGA, ADVOCATE) THIS CRIMINAL RP IS FILED UNDER SECTION 397 R/W 401 CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 12.08.2015 PASSED BY THE ADDL. CIVIL JUDGE AND J.M.F.C., KUNDAPURA IN C.C.NO. 380/2011 AND JUDGMENT AND ORDER DATED 11.01.2017 ON THE FILE OF ADDL. DIST. AND SESSIONS JUDGE, UDUPI (SITTING AT KUNDAPURA IN CRL.A.NO. 8/2015.
THIS CRIMINAL RP COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner aggrieved by the order dated 11.01.2017, passed by the Additional District & Sessions Judge, Udupi (sitting at Kundapura), Kundapura in Crl.A.No.8/2015, and the order dated 12.08.2015, passed in C.C.No.380/2011 by the Addl. Civil Judge & JMFC, Kundapur, has filed the present revision petition.
2. The brief facts of the case are as under:
The respondent-complainant filed a complaint before the Trial Court against the petitioner-accused under Section 138 of the Negotiable Instruments Act, 1881 (‘the NI Act’ for short), alleging that the complainant lent a loan of Rs.90,000/- to the accused for carrying out business. Accused did not repay the said amount. Thereafter the complainant made a demand for repayment of the said amount. The accused issued cheque No.480127 dated 19.08.2010, drawn on Canara Bank, Court Road, Udupi Branch. The complainant presented the said cheque for encashment. But the said cheque was dishonoured with an endorsement “insufficient funds”. The bank issued a memo. After receipt of banker’s memo, the complainant issued a legal notice on 07.09.2010. Inspite of service of notice, the accused failed to repay the cheque amount. The complainant instituted a private complaint before the Court of Additional Civil Judge & JMFC, Kundapura, under Section 138 of the NI Act in CC No.380/2011. The accused-petitioner participated in the trial and got examined himself as DW-1. The complainant-respondent has been examined as PW-1 and got marked documents as per Exs.P1 to P9. After recording the evidence of both sides and marking the documents, the Trial Court passed an order dated 12.08.2015, whereby the accused was convicted and sentenced to pay fine of Rs.1,30,000/-, in default to undergo simple imprisonment for a period of three months.
Aggrieved by the said order, the accused preferred an appeal before the Additional District & Sessions Judge, Udupi (sitting at Kundapura), Kundapura in Criminal Appeal No.8/2015. The Appellate Court, after hearing both sides on merits, was pleased to allow the appeal in part vide judgment dated 11.01.2017, whereby the accused was directed to pay a fine of Rs.1,00,000/- instead of Rs.1,30,000/- and in default to undergo simple imprisonment for a period of three months.
Aggrieved by the above referred orders passed by the Trial Court and the Appellate Court, the petitioner- accused is before this court.
3. Heard the learned counsel for the parties and perused the lower court records.
4. The learned counsel for the petitioner-accused has contended that the respondent-complainant has no financial capacity to lend money and secondly that the cheque was not issued by her, but the same was issued by her husband. She has also denied her signature on the cheque and also contended that the demand notice was not served on her.
5. The learned counsel for the respondent- complainant has supported the impugned orders.
6. The contention urged by the learned counsel for the petitioner is that PW-1 (complainant) has deposed that though the accused was the owner of the bus earlier, as she underwent loss in the said business, she sold the bus. The said fact has not been denied by the accused during the course of cross-examination of PW-1. During the cross-examination it was suggested to the complainant that he is doing business of money lending for interest. The said suggestion itself is sufficient to hold that the respondent-complainant has the financial capacity to lend money to the petitioner. Further, the petitioner has not challenged the said aspect, as could be seen from the cross-examination of PW-1. The contention of the learned counsel for the petitioner that the respondent has no financial capacity, cannot be accepted for the reason stated above.
7. The next contention urged by the learned counsel for the petitioner is that the cheque was issued by petitioner’s husband and not by the petitioner. In order to establish the said fact, the petitioner has not examined her husband, though the petitioner and her husband are residing together, which has not been denied by the petitioner. The petitioner could have examined her husband in order to establish that the cheque was issued by him. When the petitioner has failed to examine her husband, an adverse inference could be drawn against the petitioner for non-examining and withholding of material witness. The petitioner was examined as DW-1 and she has deposed that she is not in good terms with her husband. In the course of cross- examination of PW-1, it is suggested that the petitioner is residing along with her parents and brothers. But, when it came to the evidence of the accused/DW-1, she has deposed that she and her husband are staying together. Hence, the evidence of DW-1 is not trustworthy. Further, if really the petitioner’s husband has issued the cheque to the respondent and misused the same, and if really she is not in good terms with her husband, then the petitioner could have initiated legal action against her husband. But the inaction on the part of accused goes to show that this is one of the defense taken by her as to get away from the liability towards the complainant. The said contention cannot be accepted.
8. The next contention urged by the learned counsel for the petitioner is that the demand notice was not served on the petitioner. But, the demand notice is returned with the postal endorsement “refused” “left”. The said unserved envelope is marked as Ex.P6. As could be seen from the demand notice envelope and also the complaint, the address of the accused is one and the same. The summons which was issued by the Trial Court was also served on the same address and the vakalathnama also shows the same address. On several occasions the petitioner has filed applications under Section 70(2) of Cr.P.C., and in these applications also the same address is reflected. The accused does not deny the address shown on the envelope. This goes to show that the accused has avoided the service of notice.
9. In this regard, I would like to place reliance on the judgment of the Hon'ble Supreme Court in the case of D. VINOD SHIVAPPA VS NANDA BELLIAPPA [(2006) 6 SCC 456] wherein presumption of the deemed service has been discussed in detail. Head note ‘A’ of the said judgment reads as under:
“Presumption of receipt of notice – when arises – fraudulent avoidance of notice – nature and proof – Held, when drawer refuses to accept the notice or when he evades service of notice by fraudulent or unscrupulous means so that the envelope containing the notice is returned with a false endorsement such as premises locked or addressee not available, court may presume receipt of notice by the drawer xxxxxx”
In view of the above law laid down by the Hon'ble Supreme Court, there is a legal presumption with regard to service of notice under Section 27 of the General Clauses Act. The said presumption has not been rebutted. Hence, the notice issued to the petitioner which is returned as “refused” “left”, is held to be deemed service of the same.
10. The learned Trial Judge, after considering the entire material on record, has found that the petitioner- accused has committed an offence punishable under Sections 138 of the NI Act, by drawing presumption under Sections 118 and 139 of the NI Act, and has rightly convicted the petitioner. The Appellate Court, after re-appreciating the evidence on record, has partly allowed the appeal and modified the fine amount to be paid by the accused to Rs.1,00,000/- instead of Rs.1,30,000/- and the remaining portion of the order of the Trial Court remained unaltered.
11. In view of the above said reasons, I am of the considered opinion that the petitioner has not made out any good ground to interfere with the impugned order. Hence, I proceed to pass the following:
Order The revision petition is dismissed.
Sd/- Judge RD