IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No. 781/2014 BETWEEN:
SRI.CHANDRAPPA, S/O BASAPPA, AGED ABOUT 47 YEARS, AGRICULTURIST, R/O KECHENAHALLI VILLAGE AND POST, JAGALUR TALUK-577 528 DAVANAGERE DISTRICT.
.. PETITIONER (BY SRI.K.GURUDHATTA, ADV. FOR SRI.A.G.BALARAJ, ADV.) AND:
SRI.J.H.LOKESH, S/O DYAMAPPA, AGED ABOUT 58 YEARS, AGRICULTURIST, R/O HANUMANTHAPURA VILLAGE JAGALUR TALUK- 577 528.
.. RESPONDENT (BY SRI.D.P.MAHESH, ADV.) THIS CRL.RP IS FILED U/S 397 R/W 401 CR.P.C. PRAYING TO SET-ASIDE THE JUDGMENT AND ORDER DATED 1.3.2012 PASSED BY THE JMFC, JAGALUR IN C.C.NO.27/2009 AND THE JUDGMENT AND ORDER DATED 11.6.2014 PASSED BY THE 1 ADDL. DISTRICT AND SESSIONS JUDGE, DAVANAGERE IN CRL.A.NO.28/2012 AND TO ACQUIT THE PETITIONER IN C.C.NO.27/2009 BY DISMISSING THE COMPLAINT FILED BY THE RESPONDENT HEREIN.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The present revision petition has been filed by the petitioner-accused challenging the Judgment of the I Addl. District and Sessions Judge, Davanagere (‘First Appellate Court’ for short) in Criminal Appeal No.28/2002 dated 11.6.2014, whereunder the Judgment of conviction and order of sentence passed by the JMFC, Jagalur (‘trial Court’ for short) in C.C. No.27/2009—dated 1.1.2012 was confirmed.
2. It is the submission of the learned counsel for the petitioner that both the Courts below without proper appreciation of the evidence on record, only on assumptions and presumptions have come to the wrong conclusion and have convicted the petitioner-accused.
He further submitted that notice issued to the petitioner-accused is not in accordance with law and no notice has been served on him. He further submitted that the respondent-complainant has not led any evidence to prove that he has got capacity to pay the amount to the petitioner-accused. He further submitted that he has not been given any opportunity to rebut the presumption which has been drawn as against him. On these grounds, he prayed to set-aside the impugned Judgment of the First Appellate Court and consequently, set-aside the order of the trial Court and acquit the petitioner-accused.
3. Per contra, learned counsel for the respondent- complainant vehemently argued and submitted that during the course of cross-examination many suggestions have been made whenceunder the petitioner-accused has admitted his signature on the cheque Ex.P1. The said admission clearly goes to show that the cheque bears his signature. The Court below has drawn the presumption as contemplated under the law and the petitioner-accused has not rebutted the said presumption. By taking into consideration the said aspect, the trial Court as well as the First Appellate Court have come to the right conclusion and have convicted the petitioner-accused. He further submitted that Exs.P7 to P10, RTC extracts produced by the complainant clearly go to show that he was financially sound as he being the landlord and owning 12 acres of land. He further submitted that earlier the petitioner- accused used to do financial business and for the said purpose, he took the amount from the respondent- complainant and thereafter, he has not paid the amount and in consonance with the same, the petitioner- accused issued a cheque-Ex.P1 and when it was presented, the same was dishonoured with an endorsement ‘no sufficient funds’ and subsequently, notice has also been issued, when petitioner-accused not responded to the notice and not paid the amount due, the respondent-complainant filed the compliant. The trial Court after considering the evidence and materials placed on record has rightly convicted the petitioner-accused. The petitioner-accused has not made out any good grounds to allow the petition. He further submitted that sufficient opportunity has been given to the petitioner-accused to lead his evidence, inspite of that he has not led any evidence. On these ground he prayed to dismiss the petition.
4. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and I have also gone through the original records secured by this court.
5. The first contention of the learned counsel for the petitioner is that notice which is said to have been served on the petitioner is not served as contemplated under Section 138(5) of the Act. But as could be seen from the records, notice has been sent by the respondent-complainant through registered post and the said document has been got marked as Ex.P6. On the said postal cover, the postal authorities have made an endorsement that the said postal cover has been ‘refused’ and it is returned to the sender. When there is a postal endorsement to the effect that the said letter sent through registered post has been refused, then under such circumstances, it is to be construed as valid service. Hence, after service of notice, within the stipulated period if the amount demanded under the said notice is not paid, then a right is accrued to the respondent-complainant to file petition under Section 138 of the Act and accordingly, he has filed the said complaint. Thereafter, the trial Court, after issuance of notice and securing the presence of the petitioner- accused, the Court below has disposed of the case. Under such facts and circumstances, the first contention of the petitioner-accused does not survive for consideration and the same is rejected.
6. The second contention of the learned counsel for the petitioner is that the petitioner-accused is not having any financial capacity to pay the amount. But as could be seen from the records produced by the respondent-complainant Exs.P7 to P10, RTC extracts, which indicates that the petitioner-accused is having land to an extent of 12 acres and even during the course of cross-examination the said aspect has not been seriously disputed by the petitioner-accused. Under such facts and circumstances, now it cannot be contended by the petitioner-accused that he is not having any financial capacity to pay the said amount.
7. The next contention which has been taken by the learned counsel for the petitioner is that he has not been given full opportunity to put-forth his defence. As could be seen from the records, it is suggested during the course of cross-examination that the cheque, Ex.P1 bears the signature of the petitioner-accused. Once, the petitioner-accused has admitted the signature on Ex.P1, then under such circumstances, the Court is duty bound to draw a presumption under Section 139 of the Act. Then, the burden shifts on the petitioner-accused to rebut the said presumption on preponderance of probabilities. But, as could be seen from the records the petitioner-accused has not stepped into the witness box and has not lead any evidence. Even the order sheet of the trial Court discloses the fact that when the matter has been posted for recording 313 statement of the accused by putting incriminating material, he remained absent and he was secured under warrant, then thereafter, the statement of the accused has been recorded under Section 313 Cr.P.C. Even the accused has also not made any efforts to lead evidence. Under such circumstances, now, at this stage, he cannot contend that he has not been given any opportunity to lead his evidence and rebut the presumption. Even the presumption can be rebutted not only by leading evidence but also by cross-examining the complainant. On going through the cross-examination, it is noticed that no effort has been made in this behalf.
8. By going through the Judgment of the First Appellate Court as well as the trial court, it indicates that the petitioner-accused and the complainant were acquainted with each other and due to the said financial demand for family necessity, the respondent- complainant has given Rs.6 lakhs and for repayment of the said loan, petitioner-accused issued a cheque dated 18.7.2008 for a sum of Rs.6 lakhs drawn on Corporation Bank, Mandipet branch, Davanagere. Inspite of repeated demand made by the complainant, petitioner-accused failed to return the amount. on presentation of the said cheque, the same was dishonoured for want of sufficient funds and thereafter, legal notice was issued on 6.11.2008, 7.11.2008 and also on 12.11.2008 calling upon him to make payment of the amount due under the said cheque. Though notice was issued, the same was refused by the petitioner-accused and also has not returned the amount. Even in the evidence of PW-1 he has categorically and consistently stated the said fact and during the course of cross-examination, nothing has been elicited to discard the said evidence.
9. I have carefully and cautiously gone though the Judgment of the First Appellate Court as well as the trial Court. On going through the evidence and material on record, it is evident that both the Courts below after appreciating the evidence on record and by drawing a presumption, have rightly come to the conclusion. There are no good grounds made out by the petitioner- accused to interfere with the said impugned orders and hence, the impugned orders do not call for interference.
The petition is devoid of merits and same is liable to be dismissed and is, accordingly dismissed.
Sd/-
JUDGE ln