IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI CRIMINAL RP NO. 400 OF 2017 BETWEEN:
SRI RAMESH H C S/O LATE H CHANDRASHEKAR, AGED ABOUT 38 YEARS, R/AT NO. 4/2, 2ND FLOOR, T.R.MANJUNATHA BUILDING, AREKEMPANAHALLI, JAYANAGAR BENGALURU - 560 070.
(BY SRI. ADINARAYAN, ADVOCATE) AND:
SRI M R SHIVA S/O M RAJ AGED ABOUT 44 YEARS, R/AT NO. 21, VINAYAKANAGAR 1ST MAIN ROAD, 4TH CROSS ADUGODI POST BENGALURU - 560 078.
….PETITIONER ….RESPONDENT (BY SRI. G M SRINIVASA REDDY, ADVOCATE) THIS CRIMINAL RP IS FILED UNDER SECTION 397 READ WITH 401 OF CR.P.C. PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO SET ASIDE THE IMPUGNED JUDGMENT DATED 21.10.2016 PASSED IN CRL.A.NO. 608 OF 2016 PASSED BY THE LEARNED LXIX ADDL. CITY CIVIL AND S.J., BENGALURU WHICH IS PRODUCED AT ANNEXURE-A AND ALSO SET ASIDE THE JUDGMENT OR CONVICTION DATED 06.04.2016 PASSED BY THE LEARNED XX ACMM, BENGALURU IN C.C.NO. 9236 OF 2014 WHICH IS PRODUCED AT ANNEXURE-B.
THIS CRIMINAL RP COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner has filed the present petition challenging the order passed in C.C.No.9236/2014 vide order dated 06.04.2016, which was confirmed in Crl.A.No.608/2016 vide order dated 21.10.2016.
2. The brief facts of the case are as under:
Petitioner and respondent are known to each other for last more than 5-6 years. During February 2013, the petitioner obtained hand loan of Rs.7,00,000/- from the respondent for his business purpose and agreed to repay the said amount within a period of 6 months. After completion of 6 months, when the respondent demanded the said amount, the petitioner issued a cheque bearing No.979227 dated 26.08.2013, for a sum of Rs.7,00,000/- in favour of the respondent. The respondent presented the said cheque for encashment and the said cheque was returned dishonoured with an endorsement “funds insufficient” on 02.09.2013. After the receipt of the endorsement from the bank, respondent got issued a legal notice on 12.09.2013. The same returned with an endorsement “insufficient address / incomplete address”. The respondent filed a complaint under Section 200 of Cr.P.C. before the Trial Court. After filing the complaint, the case was registered as PCR and sworn statement was recorded and the Trial Court took cognizance and ordered for registering a criminal case and enlarged the petitioner on bail. The petitioner did not plead guilty and claimed for trial and the Trial Court posted the matter for respondent’s evidence. The respondent in support of his case examined himself as PW-1 and got examined two witnesses as PWs.2 & 3 and got marked 11 documents as per Exs.P1 to P11 and closed his side.
The statement of the accused was recorded under Section 313 of Cr.P.C. The defence of the petitioner is that respondent has no financial capacity to lend the amount and that he has issued a blank cheque for the purpose of security. The Trial Court, after considering the material on record and evidence led by the parties, has held that the petitioner is guilt of offence punishable under Sections 138 of the NI Act and sentenced to pay a fine of Rs.8,10,000/-, in default to undergo simple imprisonment for a period of three months.
The petitioner aggrieved by the said order preferred Crl.A.No.608/2016 before the LXIX Addl. City Civil and Sessions Judge. The Appellate Court after re- appreciating the evidence and documents, dismissed the appeal vide order dated 21.10.2016.
Aggrieved by the said order passed by the Appellate Court, the petitioner has filed this revision petition.
3. Heard the arguments of learned counsel for the parties.
4. It is not in dispute that petitioner has issued the cheque and the signature found on the alleged cheque is that of the petitioner. In support of this contention, the respondent got examined himself as PW-1. On 24.06.2015, the petitioner and his counsel were absent. On the said date, matter was adjourned to 06.07.2015, 17.07.2015 and 03.08.2015. On all the said dates, PW-1 was present. The Trial Court, on 17.07.2015 and 03.08.2015, adjourned the matter imposing cost. On 26.08.2015, PW-1 was present and he was cross-examined in part. The petitioner sought time for further cross-examination. Again the matter was adjourned to 30.10.2015. PW-1 was present, but there was no representation on behalf of the petitioner. Hence, further cross of PW-1 was taken as ‘nil’ and the Trial Court proceeded to record 313 statement on 01.12.2015.
The petitioner filed application for recalling PW-1. the said application came to be allowed by order dated 18.12.2015 and PW-1 was recalled and matter was adjourned to 02.01.2016 and 20.01.2016. On 06.02.2016, PW-1 was present and requested for adjournment. The Trial Court rejected the request of the petitioner and cross of PW-1 was taken as ‘nil’ and posted for defence evidence and adjourned to 24.02.2016. On 24.02.2016, evidence of petitioner was taken as ‘nil’ and posted for arguments.
5. The Trial Court has given sufficient opportunity to the petitioner to cross-examine PW-1 and also for leading defence evidence, but the petitioner did not utilize the opportunity. The petitioner was negligent in conducting the proceedings before the Trial Court. The contention of the petitioner that the Trial Court has not given sufficient opportunity to cross-examine PW-1 cannot be accepted for the reasons stated.
6. On perusal of the cross-examination of PW-1 (complainant-respondent), the petitioner (accused) has taken a specific stand that the respondent is not having the financial capacity to lend such a huge amount to the petitioner and admits that in the year 2011 he borrowed a loan of Rs.1,00,000/- from the respondent and issued a blank cheque for the purpose of security. When the petitioner himself admits that he has obtained loan from the respondent, but denies the quantum of amount, the burden is upon the petitioner to prove that he has not borrowed Rs.7,00,000/-, but in fact, it is Rs.1,00,000/-. When the petitioner admits regarding issuance of cheque and signature on the cheque, there is a presumption under Section 118 and 139 of the NI Act, that the petitioner has un-rebutted the presumption. He has not led any evidence in support of his defence. The Trial Court was justified in holding that the respondent has complied the mandatory requirement of Section 138 of the NI Act.
7. Learned counsel for the petitioner also submits that the petitioner has not received the legal notice sent by the respondent and the respondent has not complied the ingredients of Section 138 of the NI Act, i.e., regarding service of notice.
8. There is a presumption under Section 27 of the General Clauses Act that notice is deemed to have been served. Hence, the contention of the petitioner cannot be accepted that the legal notice was not served on him. 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 the Hon'ble Supreme Court has held as under:
“Section 27 of the General Clauses Act deals with the presumption of service of a letter sent by post. The dispatcher of a notice has, therefore, a right to insist upon and claim the benefit of such a presumption. But as the presumption is a rebuttable one, he has two options before him. One is to concede to the stand of the sendee that as a matter of fact he did not receive the notice, and the other is to contest the sendee’s stand and take the risk for proving that he, in fact, received the notice. It is open to the dispatcher to adopt either of the options. If he opts for the former, he can afford to take appropriate steps for the effective service of notice upon the addressee. Such a course appears to have been adopted by the appellant Company in this case and the complaint filed, admittedly within limitation from the date of the notice of service conceded to have been served upon the respondents.”
9. Perusal of the address shown on the envelope and the address shown in the cause title of the complaint, shows that both the addresses are one and the same. The summons issued by the Trial Court was also served on the same address as shown in the envelope. In the present case, the petitioner has not rebutted the presumption and even he does not dispute about the address shown on the envelope as incorrect. I hold that notice is deemed to have been served on the petitioner.
10. The petitioner while borrowing money has pledged the title deeds of his brother with the respondent, for the purpose of security. The respondent has produced those documents before the Trial Court and marked as Exs.P9 to P11. The petitioner suggested to PW-1 during the course of cross-examination that the said documents were handed over to the respondent at the time of borrowing the loan amount and the petitioner has admitted the same.
11. In view of the above said facts, the Trial Court, after considering the entire material on record, has rightly held that the petitioner has committed an offence punishable under Section 138 of the NI Act and rightly imposed the fine. The Appellate Court, after re- appreciating the entire material on record, has rightly dismissed the appeal.
12. It is well settled that revisional power is to be exercised in exceptional cases. I do not find that the case on hand is an exceptional case. In view of the aforesaid reasons, I am of the considered opinion that the petitioner has not made out any grounds to interfere with the impugned orders passed by the Trial Court as well as by the Appellate Court. Hence, I proceed to pass the following:
Order The revision petition is dismissed.
Sd/- Judge RD